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CANONICAL ELECTIONS 



Dissertation 

SUBMITTED TO THE FACULTY OF THEOLOGY OF 
THE CATHOLIC UNIVERSITY OF AMERICA 



IN PARTIAL FULFILLMENT OF THE REQUIREMENTS 
FOR THE DEGREE 



DOCTOR OF CANON LAW 



By DANIEL M. GALLIHER, O. P., J. C. L. 
Catholic University of America 

J9J7 






CANONICAL ELECTIONS 



Dissertation 

SUBMITTED TO THE FACULTY OF THEOLOGY OF 
THE CATHOLIC UNIVERSITY OF AMERICA 



IN PARTIAL FULFILLMENT OF THE REQUIREMENTS 
FOR THE DEGREE 



DOCTOR OF CANON LAW 



By DANIEL M. GALLIHER, O. P., J, C L. 
Catholic University of America 

J9J7 






^v^ 



< 



iV?7w7 O&^^a^ 



4- THOMAS J. SHAHAN, S. T. D., 

Censor Deputatus. 



Imprimatur : 

►M. CARD. GIBBONS, 

Archiepiscopus Baltimorensis. 



Approbatio Ordinis 
Nihil Obstat: 

FR. JOSEPHUS KENNEDY, O. P., S. T. M. 
FR. AUGUSTINUS WALDRON, O. P., S. T. M. 



Imprimatur : 

FR. RAYMUNDUS MEAGHER, O. P., S. T. L., 

Prior Provincialis. 



The Rosary Press, Somerset, Ohio 
1917 



^ 

^ 

t 






^ (^^ 



CANONICAL ELECTIONS 



CONTENTS 

Introduction 5 

Historical Concept 7 

Juridical Concept 21 

Qualifications of Electors 31 

Convocation of Electors 45 

Persons Eligible 54 

The Act of Election 67 

Postulation 83 

Defects in Election 87 

Subsequent Acts 96 

Appendix — I. Manner of Electing a Sovereign Pontiff 104 

11. Method of Selecting Bishops in the United 

States 107 

Sources and Bibliography Ill 



INTRODUCTION 



There is no institution, perhaps, that occupies a more prom- 
inent place in the entire history of ecclesiastical legislation than 
canonical election. For the Church during the almost twenty 
centuries of her active life has promulgated for no other institu- 
tion such a vast and varied array of enactments, decrees, and con- 
stitutions. This ancient method of ecclesiastical provision- 
established by the Twelve in the designation of their successors — 
at times almost lost itself in the perilous conditions and numerous 
persecutions of the early Church, only to come forth time after 
time with renewed strength and vigor. During the first centuries 
of the Christian era the system remained weak, unstable, and 
undetermined. And even long after peace had been established 
in the Church, it failed to take on a definite form. The Church 
by her laws and decrees had continually endeavored to place 
canonical election on a firm and orderly basis, but through cir- 
cumstances of times, places, and persons, her efforts were frus- 
trated, and it was not until the celebration of the Fourth Lateran 
Council in 1215 that she succeeded in accomplishing her end. 

Canonical elections in the early Church were limited to the 
designation of the successors of Saint Peter, and to the nomina- 
tion of bishops. But the rise and growth of religious orders oc- 
casioned an extension in the discipline of canonical election, which 
became the natural and ordinary way of selecting religious supe- 
riors. The method adopted by religious institutes was later in- 
troduced into the chapters of the secular clergy. The chapters 
of cathedral churches not only obtained the exclusive right of 
electing bishops, but also of providing for other dignities and 
capitular offices by canonical election. 

And after weathering the storms of twenty centuries the 
institution of canonical election still occupies an important posi- 
tion in the ecclesiastical discipline of today. For not only Roman 
Pontiffs, but also many bishops are thus chosen. Vicar capitulars 
are placed over vacant sees by canonical election of cathedral 
chapters. This mode of provision is also used to a large extent 
among regulars and in congregations of men and women under 
simple vows. But perhaps nowhere does it obtain with more 
accuracy and universality than in the distinctively democratic 



O CANONICAL ELECTIONS 

legislation of the Order of Friars Preachers, where not only gen- 
erals and provincials, but even local prelates are canonically 
elected. 

The writer, having the happy privilege of belonging to this 
religious institute, in which canonical election with all its solem- 
nity plays so prominent and important a role, has thought it well 
worth the while to make a careful study of the legislation on the 
matter. It is well nigh impossible to find a clear and concise 
notion of the doctrine, for the various decrees and constitutions 
dating far back into the centuries are filled with innumerable 
difficulties and obscurities. The subject is too vast and extensive 
to allow a complete exposition of it within the limits of this dis- 
sertation, but the more important features pertaining to the mat- 
ter have been carefully set forth. Avoiding wearisome and con- 
fusing details, the writer has tried to set forth whatever is in- 
cluded in the sacred canons as briefly and as clearly as the mat- 
ter itself may allow. 

The subject will be treated under the following heads : I. The 
historical and juridical concepts of canonical election. II. The 
conditions for active and passive voice. III. The forms of elec- 
tion and vitiating circumstances. IV. Subsequent acts. V. The 
present discipline of electing a Roman Pontiff, and the recent leg- 
islation on the method of proposing candidates for bishoprics in 
the United States. 



CHAPTER I 
Historical Concept 

Just as Christ, Our Lord, freely called the apostles to the 
work of the apostolate and constituted them the first pastors of 
the Church, so also the apostles themselves placed others over 
the churches they had founded. The first election conducted by 
the apostles v^as that of Matthias. Peter rising up in the midst 
of his brethren reminded them that they must choose a successor 
for the apostolate of Judas and that this successor must be 
chosen from those v^ho had accompanied JesUs in His journeys 
among men and w^ho had witnessed His ascent into heaven. The 
Scriptures go on to tell us that two were appointed : Joseph and 
Matthias and that the lot fell upon Matthias and he was num- 
bered with the eleven apostles/ Peter alone of all the apostles 
had ordinary power over the entire Church and consequently his 
power alone was handed down to his successors — the extraordi- 
nary jurisdiction enjoyed by the other apostles expired with them. 
Thus the Roman Pontiff alone, the successor of Peter, could con- 
stitute bishops with the same right by which Peter had consti- 
tuted them. This was the most ancient discipline of the Church. 

In the course of time when episcopates had been instituted, 
their regions were extended and provinces were divided. This 
rendered the appointing of bishops slow and difficult and since 
the good of the Church demanded a modification of discipline, 
the Holy See committed the right of election to the people, clergy 
and bishops of the dififerent churches. So in the early ages of the 
Church elections contained these three elements : the people, the 
clergy and the bishops. The people presented the candidates and 
furnished testimony as to their fitness ; the clergy voted on 
them, and the bishops confirmed and consecrated them. Of 
greater moment, however, was the suffrage of the clergy than 
the testimony of the people. But of still greater account was 
the authority of the bishops assembled in provincial synods, hear- 
ing, weighing, now approving, now rejecting the votes of the 
clergy and the testimony of the people. Saint Cyprian^ says 
that the supreme power of electing candidates worthy of the 

'Acts I. 
^^ L. L Ep. 4. 



8 CANONICAL ELECTIONS 

episcopate and of rejecting the unworthy, lies with the people, 
but in these words is signified only the conscience and testimony 
of the people, who are better acquainted with the virtues and 
vices of the candidates. Many things concerning the candidates, 
of which the people were well aware, were unknown to the bish- 
ops. With the freedom, therefore, and the necessity of making 
known whatever they knew of the morals and the actions of 
those who were invited to the episcopate, elections appeared to 
be in the power of the people. The testimony of the people, how- 
ever, was not unquestionable, but frequently uncertain, incon- 
stant, divided and corrupted, hence the supreme power of exam- 
ining, approving and disapproving always lay with the bishops, 
by whose judgment episcopal elections finally became orderly 
and constant. 

It is certain that orders inferior to the episcopate pertained 
to the will and power of the bishops, although they were not con- 
ferred upon any one without consulting the clergy and the people. 
Bishops, therefore, enjoyed the right and power to choose clerics 
and beneficiaries of their own churches, but since circumstances 
prevented them from knowing the morals and ability of the can- 
didates, they were forced to rely upon the testimony of the clergy 
and the people. When, however, the piety and morals of the 
candidate were so manifest, that no further testimony was 
needed, the bishop would ordain him and then notify the clergy 
and the people of the fact. Thus Cornelius tells us that Theoctis- 
tus, Bishop of Caeserea, ordained Origen in 218 A. D.^ And in 
like manner Cyprian ordained Aurelius, who later {3S8) became 
the illustrious archbishop of Carthage. - 

After the time of Constantine, the people still continued to 
have a part in episcopal elections.^ In the Second Council of 
Carthage, 217 A. D., provincial bishops were forbidden to ordain 
one whom the people presented, unless he were confirmed by the 
metropolitan.* The Third Council of Carthage, 251 A. D., decreed 
that if two or three bishops elected a candidate, he might be or- 
dained provided he could exonerate himself before the people of 
all the crimes vv^ith which he was charged.^ Of such regard w^ere 
the good morals of the elect, that they must have as many wit- 
nesses as there were voices among the people. The Fourth Coun- 
cil of Carthage, 252 A. D., drew up a formula to examine the faith 

^ Eusebius VI. n. 23. 

^ Epistles of Cyprian, Book 3, n. 22. 

^Optatus, L. I. 

* C. 12. 

' C. 40. 



CANONICAL ELECTIONS y 

and morals of the bishops elect, but the clergy and people assent- 
ing, this could be omitted and the elect consecrated with the con- 
sent and in the presence of the metropolitan. Provision was 
made in the Fifth Council of Carthage, 253 A. D., lest the bishop 
to whom the government of a vacant see had been entrusted 
should be elected to that see, no matter how much the people 
might desire it. 

Thus through the first five centuries the principal part in 
episcopal elections was taken by the bishops, more especially by 
the metropolitan. The history of these centuries tells of many 
instances of episcopal elections, which neither the clergy nor the 
people desired.^ Leo I in very forceful words forbade the bishops 
to accede to the tumultuous postulations of the people or to be 
influenced by the votes of an unlettered and violent multitude. 
The same Pontiff prescribed that where the votes of the electors 
were divided, the metropolitan should give the bishopric to the 
one who excelled in merit and virtue. This right alone belonged 
to the people that there could be forced upon them no bishop 
whom they had continually refused and whom they were unwill- 
ing to receive, and secondly, that the obedience which they were 
to render should be in accordance with christian liberty. To these 
two considerations the bishops could limit them in elections. 

During these centuries not only bishops, clerics and the laity, 
but princes and emperors were important factors in episcopal 
elections. It seemed to the Roman Pontiffs and the bishops that 
christian nobles and magistrates should be worthy of more con- 
sideration than the people, and that their part in the suffrage 
should be of greater import. This must not be imputed to un- 
seemly adulation or partiality to worldly potentates, but it sim- 
ply signified that these men were eminent not only for power and 
birth but for wisdom, zeal and charity to the Church far more 
sincere than that of the people, who were easily influenced by 
empty words, and led astray by the hope of gain. And if the 
Church thought fit to make concessions to the nobles and mag- 
istrates, for a greater reason was it proper that she should make 
more ample concessions to the supreme rulers, as heads of the 
people and the whole republic, whose prudence and sagacity, 
whose love for the Church and whose power to promote the pub- 
lic good were greater than those of the people. If then the peo- 
ple were not to be excluded from the elections, neither were their 
princes and emperors. Although the influence of the princes in 
episcopal elections was incalculable and in time gave rise to many 

* Sidonius, L. 4. Ep. 25; Ambrosius, Ep. 59, 82. 



10 CANONICAL ELECTIONS 

and shameful abuses, still it must here be noted that their con- 
sent never in any way affected the validity of the elections. 

II. From the fifth to the eighth centuries the people and 
clergy enjoyed the same liberty of former ages in episcopal elec- 
tions. Gregory the Great, writing to the Duke of Campania, says 
that the primates of Naples should invite the people to take part 
in the elections of other bishops, and if there was no one in 
Naples worthy of episcopal dignity, they should send to Rome the 
names of three men of learning and approved morals, from whom 
a bishop would 'be chosen with the consent of the whole city.^ 
Although the dukes, governors of the city, the nobility of the 
provinces and later on the senate and the people played an impor- 
tant part in elections, still by far the principal actors were the 
clergy. Gregory afterwards addresses the presbyters, deacons 
and clergy of Milan concerning a bishop to be elected by them.^ 
And writing to the bishops of Epirus, he confirmed an election 
made by the clergy and bishops of the province. Gregory never 
wished to interfere in elections except when necessity demanded. 
His one aim was to safeguard the rights and liberties of the 
churches and that every church should have for a pastor a mem- 
ber of its own clergy. He himself had been elected by the clergy, 
senate and Roman people.^ 

Pope Symmachus said that the clergy and the people should 
be consulted by the visiting bishop who had charge of the vacant 
church and the election.* The first synod of Rome under the same 
Symmachus decreed that if all the votes of the Roman clergy- 
were unanimous for one candidate, he should be declared bishop, 
but if they were divided the majority should prevail. The words 
of this synod seem to imply that the clergy alone enjoyed suf- 
frage, but it is generally admitted that the people also shared 
this suffrage. Pope Hormisda states that in elections the Divine 
Will is manifested by the voice and consent of the people.^ 
Vigilius, however, w^as elected pope by the clergy alone.^ In sub- 
sequent elections, the people were re-admitted; first, the clergy 
would elect, then the most prominent of the laity and populace 
would give their consent. Sergius was raised to the pontifical 
throne by the clergy, people and army. 

' L. 2, Ep. 15. 
' L. 2, Ep. 29. 
'Joan. Diac, Vita Greg. M. 

* Ep. 5. 

' Ep. 25. 

* Liberate. Breviar. C. 22. 



CANONICAL ELECTIONS 11 

The Second Council of Orleans decreed that the new bishops 
of the French church should be elected by the provincial bishops/ 
In the seventh canon of the same Council it was ordained that the 
bishops, clergy, and people should elect the metropolitans and 
the election should be celebrated in the presence of all the bishops 
of the province ; but for the election of a bishop there should 
assemble only those bishops whom the metropolitan would call. 
The difference between the election of bishops and metropolitans 
w^as clearly defined in the Third Council of Orleans, in which it 
was prescribed that the votes of both the clergy and the people 
were essential to all elections either episcopal or metropolitan ; 
but for the election of a bishop, the presence of one metropolitan 
sufficed, while for a metropolitan all the provincial bishops must 
be present." 

An additional clause to the above discipline was added in the 
Fifth Council of Orleans to the effect that no bishop might take 
possession of his see without the consent or permission of the 
king. In the Third Council of Paris, all elections were declared 
null and void, which were brought about by the authority of the 
prince alone, because sometimes these unreasonable monarchs 
not rarely abused their power to conduct elections with no inter- 
vention of the clergy or consent of the people.^ With no less con- 
stance did the Fifth Council of Paris condemn this unlawful and 
violent procedure and it ordained that the successors of deceased 
J^ishops should be chosen by the metropolitan, clergy and people 
of the city, without any influence or bribes of secular authority; 
and if any election should be otherwise effected, the same should 
be considered invalid according to the statutes of the Fathers.* 
This statute was confirmed by a royal document of Clotaire II. 
There was left to the prince the privilege of confirming one whom 
the bishops, clergy and people had elected and also of sending a 
bishop from his palace to vacant churches, with the understand- 
ing that the metropolitan and bishops had the power of examin- 
ing and of not ordaining him unless his virtues and merits were 
clearly manifest. But it cannot be denied that many princes, 
exerted an evil influence over elections and that at times the bish- 
ops and clergy were but the medium of electing him whom the 
prince had already named. There were times also when the 
bishops invited the king to suggest the names of those whom 



'Can. 


I. 


^Can. 


III. 


^Can. 


vni. 


'Can. 


I. 



12 CANONICAL ELECTIONS 

they considered fit for the episcopate — never, however, to the 
exckision of the clergy's suffrage and the people's consent. 

In Spain the Council of Barcelona reserved elections to the 
clergy and people in this way, that they might name two or three 
persons, from whom the metropolitan and provincial bishops 
would choose the one who seemed to them best fitted for the 
office/ In the same canon the intervention of royal power in the 
elections was clearly insinuated, but the Fifth Council of Toledo 
makes no reference to it and places everything in the will of the 
people, clergy and bishops. Martin, bishop of Braga, forbade the 
people to mingle in the elections, contending that bishops should 
be elected by bishops, as they alone were qualified to judge the 
fitness of candidates. But this prohibition was not enforced and 
the people always had a part in the elections. The bishops would 
listen to the wishes of the clergy and to the testimony of the 
people and then proceed to elect the bishop themselves. From 
the Fourth to the Twelfth Councils of Toledo in the year 681 
there are no traces of royal interference in elections ; during this 
interval the bishops enjoyed absolute power and even presided 
at the elections of the nobility.^ Some documents of the Twelfth 
Council are extant, whereby the power of nominating bishops is 
attributed to the kings. 

Augustine was constituted bishop of England by Pope Greg- 
ory and by papal command consecrated by French bishops. This 
method was necessarily resorted to because in the English Church 
— at that time springing into new life — there were no persons 
capable of electing a bishop. But once the Church of England 
was again firmly established, there are many instances of elec- 
tions carried on in the ordinary manner of the times. We read 
in Bede's English History^ that Saint Cuthbert was elected 
bishop of Lindisfarne in a council presided over by the archbishop 
Theodore and in the presence of King Egfrid. And so on 
throughout the following ages of this period, one council after 
another ordained that bishops should be present at all elections 
and if absent should be represented by letters in w^hich their con- 
sent was expressed. But these wise regulations were not always 
observed and the ecclesiastical affairs of England were often in 
a troubled state. King Alfred sent Wilfrid, whom he had made 
a presbyter, to France to be consecrated by French bishops. At 
the same time Cead was created bishop of York by command of 

' Can. III. 

''Cone. Tol. VIII, Can. X. 

' Book III, C 22-28. 



CANONICAL ELECTIONS 13 

King Osuf.^ These centuries also abound with numerous exam- 
ples of royal intervention in elections. 

Elections in Africa were conducted with much difficulty. The 
primate or metropolitan would send a provincial bishop to pre- 
side at elections. Very frequently the clergy and people had long 
and bitter dissensions over the proposed candidates. This, how- 
ever, was the least of the troubles. Genseric, king of the Vandals, 
in his tyrannical and cruel persecution, drove all the bishops into 
exile and would not permit others to be ordained. At the request 
of Emperor Valentinian he consented that Deogratias be made 
bishop of Carthage. This bishop lived but three years and after 
his death no bishops were created in the proconsular province of 
Africa and the one time number of one hundred and sixty-four 
was reduced to three.- Genseric was succeeded by his son, Hun- 
eric, who allowed Emperor Zeno and Empress Placidia to appoint 
a bishop to the see of Carthage — which had been vacant for 
twenty-four years — on condition that the Emperor in turn would 
grant the Arians full liberty of religion throughout the vast 
empire. The bishops protested against the see of Carthage being 
filled at so great a sacrifice to the universal Church, but the peo- 
ple were enraged at this protest and proceeded to an election with 
such violence that the bishops were powerless either to prevent 
or postpone it. This state of affairs gradually became brighter, 
and the African bishops, choosing to obey a heavenly rather than 
an earthly king, elected bishops for every vacant see in the 
African church. They were moved by the hope that they could 
appease the wrath of the Vandal king, or that if the churches 
could not have bishops they would at least have martyrs. Hil- 
deric, the successor of Huneric, banished all these prelates, but 
his successor Trasamund, desiring to reign in peace and tran- 
quillity, permitted elections to be celebrated with absolute 
freedom.^ 

III. From the eighth to the tenth century elections were 
conducted in much the same way is in former years. Under the 
reign of Charlemagne unrestricted liberty prevailed. Hadrian I 
advised him never to interfere in the elections, and he himself 
set the example by declaring that he would in no way infringe 
upon the freedom of suffrage of the clergy and people.* 

In Italy the bishops of Ravenna were always elected by the 

clergy and people, neither the legates of the Roman Pontiff nor 

^ Bede V, 20. 

^Victor — History of Vandal Persecutions III. 

' lb. C 28. 

^ Thomassin V, p. 108. 



14 CANONICAL ELECTIONS 

those of the king having any voice in the matter. But the arch- 
bishop of Ravenna could not ordain provincial bishops without 
the consent of the pope. Bishops of the province of Milan were 
elected by the clergy and people, confirmed by the pope and king, 
and ordained by the metropolitan. But by far the most promi- 
nent feature of the episcopal elections in the Italian peninsula 
was the authority of the bishops ; we can find very few instances 
of any bishops having been elected without the consent of all the 
provincial bishops.^ 

From what has been said it can easily be seen that there is 
no foundation for the assertion made by Sigebert in his chronicles 
that Hadrian bestowed on Charlemagne the power of electing 
the Roman Pontiflf and of investing archbishops and bishops. 
Sigebert published this fable for the first time three hundred and 
thirty years after the death of Hadrian. In the time of Charle- 
magne the question of investitures was not dreamed of, but in 
the time of Sigebert the whole world was aroused over it, for 
Emperor Henry claimed the right for himself. Furthermore, the 
controversy over investitures arose at a date later than that of 
the fictitious Roman Synod, which according to Sigebert was 
held in the year 774. 

It is true indeed that Zachary conferred on King Pepin the 
power of nominating bishops, but this was nothing more than a 
dispensation which the nature of the troublous times demanded. 
We admit that San Gallensis^ relates some episcopal appoint- 
ments made by Charlemagne, but he says nothing of his reasons 
for thus acting; he passes over in silence the workings of ambi- 
tious men, the artifices of unscrupulous princes, the endeavors 
of powerful queens to have clerics of their families decorated 
with episcopal dignity ; he does not even mention the unyielding 
and noble stand of Charlemagne that only pastors worthy of the 
high office be placed over churches. But aside from the fact that 
the truthfulness and authority of San Gallensis are questioned 
among learned men, it must furthermore be noted that the evils 
of the times and the varying conditions could have compelled 
Charlemagne not to allow the churches to remain vacant, nor to 
permit dissensions to be protracted. Even granting that the 
nominations really took place, they are facts, not rights; they 
are examples, not decrees. 

Charlemagne conceded to the French clergy absolute free- 
dom in episcopal elections, not as a new favor or kindness but as 

^Du Chesne III. pp. 894-901. 
^'T. II, p. 108. 



CANONICAL ELECTIONS 15 

an ancient right which the sacred canons conferred, and as a 
liberty belonging to the Church, whose guardians and defenders 
kings should be. Louis the Mild began his reign by confirming 
the concession of Charlemagne and by granting the same liberty 
in the elections of abbots. Einhard in the annals of 825 A. D. 
relates that Drugo, brother of Louis, was canonically elected 
bishop of Metz by free suffrage, to which Louis gave his consent.^ 
The biographer of Louis tells us that not only the emperor and 
clergy, but also the nobles and people took part in the election 
of Drugo. The metropolitan invested the bishop by placing in 
his hands a staff, then the ceremony was immediately repeated 
"by the emperor at the request of the metropolitan. Thus from 
these friendly relations between ecclesiastical and secular power 
"began investiture by the emperor, which in later years caused 
long and bitter conflicts between popes and emperors. 

Although in the elections of these times the clergy frequently 
prevailed over the people and sometimes the people over the 
clergy, canonical freedom always remained intact. When the 
kings interfered liberty still obtained, for they either approved 
-of the one chosen by the clergy and people, or proved to them 
the fitness of those of their own choice. Of such a nature was 
the election of Drugo. 

The peace and concord that prevailed in the reigns of Pepin, 
Charlemagne, Louis the Mild and Charles the Bald did not con- 
tinue under their successors. The latter pretended that they 
were heirs not only to the kingdom, but also of royal veneration 
and deference throughout the extent of the universal Church, 
But conditions were greatly bettered by the prudence and firm- 
ness of Hincmar, archbishop of Rheims. He wrote to the youth- 
ful kings Louis and Caroloman, reminding them how favorably 
disposed he had been to their promotion and coronation, but he 
did not hesitate to say what were the limits of royal and ecclesi- 
astical authority, and how willingly secular power should bow 
to the authority of the Church of the ages, and that they were 
l)Ound in conscience not to protract the widowhood of churches, 
either by preventing elections or unreasonably objecting to those 
already held.^ After the reigns of Charles the Fat and Charles 
the Simple peace and liberty were to a great extent restored in 
canonical elections. 

Towards the end of this period wars were breaking out and 
raging on all sides, but the voice and authority of the canons were 

* Du Chesne, lb. p. 302. 
= Flodoard III, c. 19. 



16 CANONICAL ELECTIONS 

held in honor; and when the majesty of the French kings was 
everywhere assailed by insolent tyrants, it was cherished most 
religiously by the Church, which permitted no bishops to be 
placed over them against their will. And although bishops could 
not take possession of their sees without the kings' consent and 
assistance, this was not injurious to the free elections previously 
concluded, for if the royal ministers would dare to hold an elec- 
tion themselves, it was pronounced a violation of the canons 
and immediately condemned.^ 

The elections in Spain were principally conducted by the pro- 
vincial bishops or by those of another province. There was some 
interference from the people and royalty but it did not prevail 
over the authority of the bishops. Some say that the illustrious 
Eulogius was elected archbishop of Toledo by the voice of the 
people, but his biographer attributes his election to the bishops 
alone. ^ 

In England, too, the authority of the bishops in ecclesiastical 
elections far outweighed that of the people, clergy and royalty. 
When the clergy, monks and canons were each striving to place 
a bishop on the episcopal throne of Winchester, Dunstan, arch- 
bishop of Canterbury, put an end to the controversy by appoint- 
ing Elphege, just as he had appointed his predecessor Ethelwold. 
In the biography of Saint Dunstan, the author ascribes the power 
of electing bishops to the kings. Such, however, was not the 
general rule. King Edgar did nominate Dunstan to the see of 
Worcester in 957, and the bishopric of London becoming vacant 
a short time after, he was compelled at the same time also to 
govern that diocese. Dunstan afterwards appointed Oswald as 
his successor in the see of Worcester. Finally Dunstan was 
raised to the metropolitan see of Canterbury by the unanimous 
consent of the adjacent churches and people.^ These few excerpts 
from the life of Saint Dunstan show the common practice of pro- 
viding for vacant churches during this period. 

IV. At the close of the tenth century episcopal elections in 
the W^estern Church embraced these three elements : the prin- 
cipal electors were bishops, the clergy exercised more power than 
the people, the consent of the king was necessary. The people 
from now on gradually lost their hold and the last instance we 
find of their enjoying active voice was in the twelfth century.* 

' Du Chesne, lb., p. 489. 
' Hispan. Illust. Ill, p. 894. 
^Thomassin, lb., p. 151. 
* lb. c. 32, n. 14. 



CANONICAL ELECTIONS 17 

In the year 1215 the Fourth Lateran Council under Innocent III 
excluded the people and provincial bishops from episcopal elec- 
tions, and reserved them to cathedral chapters. It is much con- 
troverted as to when the intervention of the royalty w^as removed. 
Some hold that it was at the time of the Second Lateran Council 
in 1139, when elections were reserved to the bishops and clergy; 
others — and more probably — that from the twelfth to the four- 
teenth centuries royalty through custom gave way to laws which 
reserved elections to the diocesan clergy, and consequently to 
the chapters of cathedral churches. Clement V in the year 1305 
reserved to himself appointments to vacant bishoprics in the 
diocese of Rome. 

The successors of Clement V and Benedict XII reserved the 
elections of all bishops throughout the Church to the Holy See. 
The reason for this reservation lies in the fact that many evils 
had crept into the elections, which evils had arisen from the ambi- 
tion of men, from dissensions among those who enjoyed the priv- 
ilege of suffrage and from the unlawful means employed to ob- 
tain possession of episcopal sees. And since it fell to the Supreme 
Pontiff to supply a remedy for these evils, thus it was that he 
reserved the right of election to himself, hoping thereby to heal 
the dissensions and to promote the common good of the Church.^ 

The Holy See in no way usurped rights that did not belong 
to it — as some have wrongfully contended, but merely exercised 
its own right, which the welfare of the Church and the nature of 
the times demanded that it exercise. For in the first ages of the 
Church, as we have shown above, the right of constituting bish- 
ops belonged to the Roman Pontiff alone, who for just reasons 
had conceded this power to the people, clergy, bishops and metro- 
politans. Since all these abused the power so graciously con- 
ceded, since they paid no attention whatever to the prescribed 
laws, since they were dominated by ambition, simony and unlaw- 
ful desires, it was but right and just that the power of creating 
hishops should return to him in whom this power had ever re- 
sided, and from whom his inferiors had derived it.^ Thus by the 
law of devolution for just and serious reasons the ancient disci- 
pline by which the Supreme Pontiff constituted bishops again 
prevailed. 

It was not long before fresh troubles arose from this mode 
of procedure. These troubles were happily ended by means of 
concordats, that is, agreements entered into between the Apos- 

' Leo X. Const. "Primitiva." 

" Ben. XIV, Const. "In postremo." 



18 CANONICAL ELECTIONS 

tolic See and the most powerful princes of Europe. Nicholas V 
made such a concordat with the German Empire, in virtue of 
which German bishops were elected by the canons, but confirmed 
by the Holy See/ Leo X, after the abrogation of the pragmatic 
sanction, which the pseudo-council of Basle had edited against 
the pontifical reservations, permitted the king of France to name 
a worthy candidate, whom the pope in the following consistory 
would create bishop of the church for which he had been named.^ 
Finally other pacts were entered into, or indults or privileges 
were conceded to the kings of Spain, Portugal, Panonia and to 
other princes, whereby they might nominate or present Worthy 
candidates for their own cathedral churches.^ 

In the course of time, either through custom or through 
privilege, other modifications were introduced and today there 
are four ways of electing bishops. First, by free collation of the 
Roman Pontiff, which obtains in Italy, Mexico, in provinces gov- 
erned by Vicars Apostolic and in France since the violation of the 
concordat in 1905. Secondly, by the recommendation of several 
candidates, made by provincial bishops or by the clergy of a wid- 
owed church. This method is practiced in Belgium, Canada, Eng- 
land, Holland, Ireland, the United States and in regions subject 
to the Sacred Propaganda. Thirdly, by the presentation of a can- 
didate by a prince or patron. This privilege is enjoyed in Austria,. 
Bavaria, Spain, Peru, Portugal and Servia. Fourthly, by canon- 
ical election which prevails in the Austrian archdioceses of 
Olmiitz and Salzburg, in the dioceses of Saint Gallo, Coire and 
Basle in Switzerland, in some States of Germany — notably in the 
ecclesiastical province of the Upper Rhine, and in Prussia. 

V. Papal elections have varied considerably at different 
periods in the history of the Church. Until the fourth century 
they were conducted in the same manner as episcopal elections.* 
After this time the kings and princes of Italy began to take a 
prominent part not only in the elections of bishops, but even in 
those of the Roman Pontiff. Odoacer, King of Herculi, who 
usurped the throne of Italy in 476, declared that Simplicius pre- 
vious to his death in 483 had given him permission to take part 
in the election of his successor, but this concession was pro- 
nounced invalid by the clergy. Symmachus, who was raised to 

^ Bull "Ad sacrament." 
'Bull "Pastor aeternus." 
^Ad Regul. 2. Cancellar I. 
* S. Clement Ep. I. c. 44. 



CANONICAL ELECTIONS 19 

the pontifical throne in 498, decreed that no lay persons — includ- 
ing the royalty, should interfere with the elections. But Theo- 
doric, king of Italy, compelled the Roman clergy to elect Felix 
IV; they did so on condition that henceforth they were to enjoy 
absolute liberty in elections. This condition was not observed,, 
and it gradually came to pass that no one was elected who was 
not acceptable to the royal household. King Athalaric prescribed 
that on two candidates being elected by dissenting parties, the 
controversy should be settled in the king's palace and that the 
pontiff-elect should bear all the expenses — which he fixed at the 
sum of three thousand crowns of gold. This ordinance was con- 
firmed by Justinian in 553. Constantine IV granted entire free- 
dom in papal elections by removing the abuse of awaiting the 
confirmation of emperors, though the latter still continued to 
interfere during the following centuries. Nicholas II in 1059 
ordained that papal elections should be held by the cardinal bish- 
ops, who should seek the assent of the Roman clergy to their 
choice, and have due regard for the rights of the emperor. In 
1178 Alexander III reserved the right of electing a pontiff to the 
entire college of cardinals, thereby excluding clergy, people and 
and emperor. This discipline is still in force and will receive par- 
ticular attention and treatment in an appendix to this paper. 

We have space for but a brief notice of the much mooted 
historical question concerning the pope's power to nominate his 
own successor. Many hold he is prohibited from doing so by 
divine law. The principal reasons for their assertion are : first, 
that ecclesiastical benefices are not hereditary; secondly, that 
if the pope were to appoint a successor he would be exercising 
power after death, something forbidden by law ; thirdly, con- 
trary decrees of Boniface II, Pius IV and Paul III. 

The affirmative opinion, however, seems more probable. In 
the first place nothing on this point has ever been determined by 
divine law, for neither in Sacred Scripture nor in tradition can 
we find the least reference to it. And if Christ had prescribed a 
mode of electing the Supreme Pontiff, it would not have been 
changed during the various periods of the Church, but would have 
remained always the same. To the authority of the Church, 
therefore, does it belong to establish a method and to change it 
according to the exigencies of the times. This authority is vested 
in the Roman Pontiff, to whom the government of the universal 
Church has been committed. No canonists nor theologians ques- 
tion this right of the Holy Father.^ 

' Wernz XL, p. 651. 



20 CANONICAL ELECTIONS 

Furthermore, in case of real and extraordinary necessity or 
utility to the Church, the pope can, according to the more prob- 
able opinion, licitly and validly designate — not merely recommend 
— his successor/ For the supreme and absolute power of the 
pope is not restricted either ex natura rei or by any special divine 
law to mere legislation on the nomination of a successor. It 
seems, therefore, that the denial of the pope's right to extend hi3 
power to the immediate nomination of a successor lacks solid 
foundation. 

The negative arguments at the most prove that a pope cannot 
licitly use this mode of provision as something ordinary, nor val- 
idly impose it on a successor as an ordinance of law.- Sacred 
Scripture and divine tradition furnish no arguments to show that 
any restriction has been placed on pontifical authority by divine 
law. Nowhere did Christ by an explicit, special law forbid His 
vicar on earth to appoint a successor. We admit that benefices 
are not hereditary, but this argument has no force here, for elec- 
tions exclude heredity. We grant that a Pope cannot exercise 
his power after death, but to elect a successor is to complete the 
act during life, and to suspend its eflFect — which is permissible. 
Another argument in our favor is the fact that in 1883 a Bene- 
dictine abbot found in the library of the chapter of Novara a doc- 
ument — which every one admits as authentic — from which it is 
clear that Felix IV (526-530) designated as his successor Boni- 
face II and that he did not recall this designation before his death. 
Boniface II himself acted in a like manner, even though he after- 
wards revoked his appointment. The contention that the nega- 
tive is the more probable opinion is based on a false supposition, 
for no common opinion exists, and there are many learned doc- 
tors such as Bonacina, Decius, Ledesma, Mendoza, Suarez, Vas- 
quez, Victoria, Wernz and others w^ho teach the affirmative. The 
alleged decrees of Boniface II, Pius IV — which was never pro- 
mulgated — and Paul III are opposed by that of Felix IV ; besides 
they are not dogmatic definitions but disciplinary statutes.^ 

'Hefele II, p. 627; Hollweck, t. 74, p. 329. 

^Ib. 

'Wernz, lb. 



CHAPTER II 
Juridical Concept 

The word election is of Latin origin (electio, from eligere, 
to choose from), .and in a broad sense means a choice among 
many persons, things, or sides to be taken. In the strict juridical 
sense it signifies the choice of one person among many for a defi- 
nite charge or function.^ In ecclesiastical law the sacred canons, 
speaking of election in its broadest sense, include also collation 
or mere gratuitous institution. Election thus understood is the 
promotion of a person to an ecclesiastical dignity or benefice, and 
it is properly called election, because a superior in conferring a 
dignity or benefice upon a person chooses him in preference to 
others. In a broad sense ecclesiastical election comprehends not 
only election strictly so-called, but also nomination, postulation, 
and presentation. 

The essence of election in its broad sense is made manifest 
by showing how it dififers from collation. In the first place elec- 
tion essentially differs from collation in this that collation is the 
act of a superior conferrng an ecclesiastical office, while election 
is an act of subjects naming a person for an office. Secondly, col- 
lation confers upon the nominee the office itself (jus in re), and 
in virtue of his acceptance he immediately becomes absolute mas- 
ter, even before he has taken actual possession ; election gives 
but a claim to the office (jus ad rem), conferring actual posses- 
sion only on the confirmation or institution of a superior.^ Al- 
though by election the elect sometimes acquires the benefice or 
prelacy immediately, as do newly elected popes and generals of 
Orders, this does not pertain to those elections because they are 
elections, but because they are such elections as are confirmed by 
common law as soon as they are lawfully concluded and the elect 
consents thereto. For as soon as an elect consents to a lawful 
election in which he was elected, v. g., to the pontificate, he 
thereby from divine institution becomes the vicar of Christ and 
successor of Peter. A third difiference is that the appointee, hav- 
ing once consented, is no longer free to renounce the office with- 
out the consent of his superior ; on the other hand an elect may 
freely renounce it at any time before confirmation or institu- 

^ Boudinhon, Cath. Encycl. v. Election. 
^ Rodriq. lib. 2, q .51, a. 1. 



22 CANONICAL ELECTIONS 

tion.^ Thus election taken in this way may be defined as a pro- 
vision whereby subjects, in virtue of a right given them by the 
Apostohc See, canonically elect a certain person or persons to a 
vacant ecclesiastical dignity or benefice, which either the one 
named or one of those named shall receive by the confirmation 
or institution of a superior. In this definition the genus is pro- 
vision, for provision is a general name given to all methods of 
providing for vacant offices. The essential diflPerence between 
election and collation is also clearly shown, for collation is the 
act of a superior, election of inferiors or subjects. 

Thirdly, election is taken in a more specific and proper sense, 
as distinguished from presentation. Election diflfers from pres- 
entation first not in respect to the person elected but to the 
electors. It implies a power of ecclesiastical office, which a lay- 
man cannot exercise. Although this power is neither of orders 
nor of jurisdiction, but of office,^ it is, however, the act of an 
ecclesiastic, which act is reduced to the power of jurisdiction, 
of which a layman is wholly incompetent. Presentation on the 
contrary is merely the exercise of the right of patronage (jus 
patronatus), which may be conceded to the laity. Hence electors 
to ecclesiastical offices must be clerics, whereas patrons may be 
either seculars or ecclesiastics. The right of the candidate either 
in election or in presentation is the same (jus ad rem). 

A second difference between election and presentation is that 
the former calls for canonical approbation or confirmation, while 
the latter leads to canonical institution by a competent superior. 
Although institution in a broad sense is the same as collation, in a 
strict sense, it is different, for collation is a free donation, whereas 
institution is a necessary appointment of the candidate — if fit and 
worthy — presented by a patron. Canonists distinguish free and 
necessary collation ; the first is collation in the proper sense of 
the word, the second is properly called institution. By free col- 
lation the collator not only has the right to appoint but also to 
designate or nominate the person he wishes to appoint. In neces- 
sary collation the appointment belongs to one person, the desig- 
nation or nomination to another, and the collator must of neces- 
sity appoint the person designated or presented to him by the 
patron unless canonical obstacles forbid the appointment.^ 

Election and presentation differ thirdly in this that election 
is vested in a number of electors, presentation in one person only 

^ Donatus, in prax. par. 3, tract. 1, q. 1, n. 8. 

^'Azorius, P. II, lib. 1, c. 14, q. 14. 

^ Smith, Elements of Ec. Law, I, p. 134. 



CANONICAL ELECTIONS 23 

— physical or moral. Election pertains to the members of a col- 
lege, and thus understood is defined: a provision by which in- 
ferior clerics, in virtue of papal concession, canonically elect a 
certain person or persons to a vacant ecclesiastical charge or 
function, the one named or one from those named obtaining the 
office by the confirmation of a competent superior. Election 
taken in this sense agrees with collation and presentation in so 
far as it is a canonical provision. It differs from collation be- 
cause it pertains to inferiors, while collation pertains to a supe- 
rior; it differs from presentation, for presentation belongs to 
one person only, physical or moral, and leads to canonical insti- 
tution, while election is committed to a number of clerics and 
calls for confirmation. 

Finally election in its strict and most proper sense is distin- 
guished from postulation and nomination. Canonists commonly 
define election thus understood as the canonical choice by legiti- 
mate electors of a fit person for an ecclesiastical dignity or fra- 
ternal society.^ To this definition some think should be added 
the words : by the confirmation of a competent superior. Elec- 
tion taken in this sense differs from postulation not in regard to 
the electors, but as regards the person elected, for postulation, 
as we shall explain below, is the choice of a person juridically 
ineligible by reason of some canonical impediment from which 
the superior is requested to dispense him, while election is the 
appointment of a fit person. It is distinguished from nomination 
in this that the latter is the canonical act by which two or more 
fit persons are proposed to the free choice of a superior, while the 
former is the designation of one only. 

Baldus^ defines election differently saying that it is prop- 
erly regulated determination of the will of a competent number 
to a person, who is chosen for a prelacy or rectorship. This def- 
inition would be clearer and more accurate if it said that election 
is a properly regulated determination of the will of an ecclesi- 
astical college to a fit person, who is elected to a prelacy, rector- 
ship, or ecclesiastical benefice, to be confirmed by a competent 
superior. Thus there is explained the nature of election both in 
respect to the elector and to the person elected, and likewise the 
form of election both natural, which consists in the free consent 
of the electors, as well as canonical, which is determined by the 
sacred canons, and there is also shown what sort of a right is 

* Hostiensis Summa, tit. de electione ; 

Panormitanus, Ruhr, de postulat. n. 2. 
^de elect, c. 1, n. 1. 



24 CANONICAL ELECTIONS 

obtained from election, namely a weak and unstable right needing 
the strength of confirmation. 

Election so defined is distinguishable into many species both 
as regards the electors and officers or benefices which are pro- 
vided for by election. Hence diverse methods and forms of 
electing have been established according to the condition of the 
different offices to be filled. But abstracting from this diversity, 
that election is one essentially and specifically, which is the pro- 
vision of inferior clerics, whereby, in virtue of a right conceded 
by the Holy See, they name a definite person to an ecclesiastical 
benefice, and especially to a dignity or prelacy, thus giving to 
the person elected a claim to the benefice (jus ad rem), which will 
pass into his possession by the confirmation of his superior, if the 
election be legitimately conducted according to canonical form. 

Postulation is distinguished into simple and solemn postula- 
tion. Simple postulation is a petition made to a superior to per- 
mit one of his subjects to be elected or confirmed, or to permit 
said subject to consent to his election or confirmation. This 
method of postulation is employed in the election of religious to 
dignities outside their Orders, and in those of prelates of one 
church or diocese to an office or benefice in another church or 
diocese. This species of postulation has no force except when 
the candidate has been elected or solemnly postulated, for solemn 
postulation agrees with election in this that if admitted the per- 
son thus postulated has a claim to the prelacy. 

Solemn postulation, however, is not election taken in its 
proper sense, but on the contrary far different from it. Hostiensis 
and Sylvius define postulation as a petition presented to a com- 
petent ecclesiastical superior, that he may provide for a certain 
ecclesiastical office by promoting to it a person who is prevented 
from being elected not on account of a personal fault or vice, 
but on account of some canonical impediment, which is usually 
dispensable and which does not render him strictly ineligible. 
This definition differs somewhat from that of Panormitanus^ who 
says that postulation is a request made to a superior to promote 
a certain person to a prelacy, to which by reason of some defect 
or impediment he could not have been elected or promoted ac- 
cording to common law. Some canonists hold this second defini- 
tion, but Sylvius chooses the first which is better, because it ex- 
presses that postulation has no place where the defect or im- 
pediment in the candidate is a personal vice ; this is not expressed 
in the second, which, unless it be reduced to the sense of the 
* Rubr. de post. 



CANONICAL ELECTIONS 25 

first, is incomplete and false, for according to this definition even 
one laboring under a personal defect could be elected, which is 
not true, Baldus^ defines postulation in still another way as a 
canonical act by which a favor is requested of a competent 
superior that he may provide a prelate or give the chapter per- 
mission to elect one. But this definition is very general, and could 
be applied also to simple postulation. 

From these definitions may be gleaned many essential dif- 
ferences between election and postulation. Election presupposes 
no canonical defect or impediment in the person to be elected, 
whereas postulation properly pertains to one who by reason of a 
defect which is not personal cannot be elected. If a person is 
canonically eligible for election, he cannot be postulated, for 
electors should choose for a benefice not only the one best fitted 
but also by the most suitable method. But election is a better 
mode of provision than postulation, hence an eligible person 
should be elected and not postulated, except in case of two candi- 
dates when one is elected and the other postulated. For two 
cannot be elected at the same time, but the law permits that in 
the election of one another may be postulated, even though the 
latter otherwise eligible is at present ineligible, for the reason 
that one has already been elected, and two cannot be elected at 
the same time. If, on the contrary, a person laboring under a 
canonical impediment should be elected, the election is always 
annulled, for such candidates must be chosen by postulation. 

A second difference between election and postulation is that 
the former is a matter of justice, the latter of favor. Election 
confers a right (jus ad rem) on the elect, and there moreover 
arises between him and the benefice for which he has been chosen 
a bond of spiritual wedlock. Both the electors, therefore, and the 
person elected have a right that the election be confirmed. Hence 
the elect in requesting confirmation does not ask a favor, but 
merely seeks justice, and to use the words of John Andreas : 
"when the elect is fit and worthy, he can proudly appear before 
the superior, not even raising his head or biretta, for election is 
a question of justice, and not of favor, as is postulation." 

From this second difference arises another, namely that 
postulation can be recalled by the postulators before it has been 
presented to the superior ; the messenger sent to the superior can 
likewise be recalled, provided that the revocation reach him be- 
fore he has presented himself before the superior. Furthermore, 
even if the postulation has been presented to the superior, it can 
^ Rubr. de post. n. 1. 



26 CANONICAL ELECTIONS 

Still be recalled with his consent. But election cannot be revoked, 
for by virtue of election the person elected acquires a right (jus 
ad rem) to the charge or function for which he has been chosen, 
while in postulation the one postulated acquires no right what- 
soever. Some object to this last statement, saying that postula- 
tion made for the utility and concord of the Church cannot be 
rejected.^ Sylvius responds that where postulation is not made 
for reasons of concord, no right is acquired, not even by the pos- 
tulators ; but where postulation is made by two-thirds of the 
voters, those postulating acquire a right, and in this sense can- 
onists must be understood who say that postulation made for 
the concord and advantage of the Church should be admitted. 
The person postulated, however, never acquires any right, since 
he has a canonical defect or impediment which renders him in- 
eligible until he is dispensed therefrom. We shall return to this 
question again when treating of postulation in particular, where 
the many other differences between election and postulation will 
be explained. 

Solemn and juridical nomination is also a way of providing 
for vacant churches. According to Hostiensis it is the canonical 
act by which the electors propose two or more worthy persons 
to the free choice of the superior, in order that he may appoint 
one of them to the vacant office. 

There are three species of nomination. The first, consulta- 
tive or simple nomination, is a voting previous to an election in 
which are proposed the names of several fit and worthy persons, 
one of w^hom may be elected later by the chapter. The second 
is intrinsic to election by secret ballot, and obtains when each 
of the electors names him whom he wishes to be elected ; the 
one thus nominated has no right whatever before the announce- 
ment of the ballot of nomination, but once the ballot has been 
made known he acquires a certain right and the electors are no 
longer free to change their opinion. The third is solemn nomina- 
tion, which is that defined above. The role of electors is the 
same as in election properly so-called.^ It differs from election 
inasmuch as it does not confer on those named a real right to the 
benefice, but, on the contrary, the nominators may recall the 
nomination at any time before it is presented to the superior. 
For just as election can fall only on one person, so nomination 
cannot confer on several a real right to the benefice ; on the con- 
trary, their right is real inasmuch as it excludes third parties, 

* Hostiensis, de elect., cap. Cum ad Monast. 
'^Boudinhon, lb. 



CANONICAL ELECTIONS 27 

though none of them possesses the jus ad rem.^ It is distin- 
guished from postulation in this that it occupies itself with a 
number of persons, whereas in postulation one only is designated. 
Moreover, nomination does not, like postulation, concern itself 
with those who have canonical impediments, but with those who 
are strictly eligible. Hence there is no question of those named 
being dispensed from an impediment through the favor of a supe- 
rior, but it is a matter of justice for the superior to confirm one 
of those named, if he be fit and worthy. 

There are, therefore, three modes of provision for vacant 
benefices — election, postulation, and nomination — distinct from 
that general mode which consists in the collation of a superior, 
and also from another mode which is the presentation and insti- 
tution of the one presented. These three agree in this that they 
are acts of an ecclesiastical college, and in them is usually ob- 
served the general form of electing by ballot ; they do not give 
actual possession or dominion, but at the most election gives a 
claim to the benefice in the manner explained above. They are 
comprehended under election, as distinguished from collation and 
institution, but are of different species. Thus election may be 
considered either generically or specifically; considered gener- 
ically postulation and nomination are species of election, but con- 
sidered specifically they are species distinct from it. 

In addition to these ways of providing for vacant churches 
or benefices, Barbosa^ adds two others: simple petition and 
translation. Simple petition, since it has no foundation in law, 
is not an ecclesiastical provision, but merely a simple supplication 
by which the clergy or people beg the Holy See to grant them the 
prelate they desire. Neither does translation bespeak a special 
way of providing for a widowed church, unless accidentally and 
in respect to the term a quo. For it is purely accidental to the 
church, that its prelate was previously a bishop or a prelate of 
some other church ; the church itself is not provided for except 
by institution, election, or postulation. Boudinhon includes still 
another method under election, namely recommendation, which 
is the designation of one or several fit persons made to the supe- 
rior by certain members of the clergy, chiefly in view of sees to 
be filled. Those recommending do not act as electors, hence the 
persons designated acquire no real right, the Holy See remaining 
perfectly free to make a choice outside of the list proposed. 
Hence there are but two general ways of providing for widowed 

^De jure eccles. I, c. 19, n. 2. 



28 CANONICAL ELECTIONS 

churches : by collation and election generically taken, which is 
divided into election strictly so-called, postulation, and nomina- 
tion. Presentation is also included under election in a general 
way, as we have explained above. 

Having explained the different ways in which election may 
be taken, it now remains to treat of the species of election strictly 
so-called. The Decretals^ admit three forms or modes of elect- 
ing prelates : the ordinary way by ballot, and two exceptional 
ways, namely, compromise and quasi-inspiration, often called 
common inspiration. The Council of Trent ^ abrogated the forms 
by compromise and quasi-inspiration in the elections of regulars, 
but they still find place in other canonical elections, as is clear 
from the constitution of Pius X, "Vacante Sede Apostolica," in 
which this threefold form is expressly mentioned. 

Some ask whether, notwithstanding the Tridentine restric- 
tion, regulars can elect by compromise united with scrutiny. We 
think that since this form of compromise is not distinguished 
from election by ballot, or at least obtains the end of secret scru- 
tiny, which is to exclude coercion and violation of liberty, it can 
reasonably be said that this form was not abrogated by the Coun- 
cil, for in it is strictly observed the law of secret ballot, as we 
shall show at length on a later page. 

It has been said that election by inspiration, because it comes 
from the Holy Ghost, is not subject to human law. Sigismund^ 
distinguishes inspiration from quasi-inspiration. The former 
occurs when the electors, observing no order and quasi-intoxi- 
cated, spontaneously name a person and acclaim him elected, as 
happened in the elections of the saintly bishops, Martin and Am- 
brose ; the latter is when all the electors suddenly, quickly, but 
orderly — that is, one after another elect the same persons. Hav- 
ing given this distinction, he says that inspiration is not a form 
of election. But inspiration is from the Holy Ghost, so when 
evident, election by inspiration will be confirmed. Hence it is 
not subject to the law or form prescribed in the chapter "Quia 
propter." 

The above remarks are true only where election by inspira- 
tion or quasi-inspiration has not been abrogated by the Council 
of Trent, they have no reference to the elections of regulars, 
where elections not conducted by secret ballot are invalid. Al- 
though what proceeds from the Holy Ghost is subject to no 

^ cap. Quia propter, Lateran Council, 1215, A. D. 
^ Sess. 25, de Regular, c. 6. 
' dub. 2. 



CANONICAL ELECTIONS 29 

human law, this is true only where it is manifest beyond question 
that the Holy Ghost wills something. We cannot say, however, 
that inspiration from the Holy Ghost directs an election from 
the sole fact that it is brought about by the spontaneous and 
unanimous acclamations of the electors. Thus the Church will 
not ratify such an election, knowing full well that if it is prompted 
by the Holy Ghost, the electors will confirm it by secret vote, the 
same Holy Spirit interiorly moving and inspiring them to do so. 

We can also deduce that the method of nomination was like- 
wise excluded in the elections of regulars, since nomination is a 
certain species of compromise. Nomination, however, by way of 
compromise united to scrutiny would be valid, for the electors 
can nominate certain ones by secret votes, and compromise with 
the superior to grant them the candidate of his choice.^ But if 
this nomination be referred to the superior orally and not by 
secret ballot, it is worthless and can be recalled even after it has 
been presented to the superior. It would be valid by reason of 
devolution, if meanwhile the electors were to elect no one else 
within the allotted time. It would also be valid by way of cession, 
for to surrender one's right is not to elect ; and the electors could 
unanimously give up their right on the condition that the supe- 
rior choose one of those named.^ 

The Council not only decreed all elections of regulars other 
than by secret ballot null and void, but it also ordained that any 
person who would allow himself to be created provincial, abbot, 
or prior in such a way, is deprived forever of passive voice in 
religion. The censure is not expressly inflicted upon generals, 
and since it is a question of penalty, the election of a general by 
public voting is indeed ipso facto invalid, but the general-elect 
does not incur the censure. One is said to give permission to 
one's election to a prelacy, who consents either antecedently or 
subsequently thereto. 

In a word the only point insisted upon by the Council of 
Trent was that the elections of regulars should be by secret 
scrutiny, in such a way, that the votes of the electors would 
never become known. 

In the Order of Friars Preachers there can be no question 
of election by compromise or by common inspiration. The early 
Constitutions^ approve of the triple form contained in the chap- 
ter "Quia propter." But the Roman edition says : "We declare 

' Passerini, De electione canonica, c. I, n. 64. 

'lb. 

' dist. 2, cap. 2, text. 1 . 



30 CANONICAL ELECTIONS 

this ancient form of election has already been abolished by the 
Council of Trent, and in every canonical election of our Order 
the decree of the Sacred Council must be observed."^ And im- 
mediately after this text is inserted an excerpt from the Chapter 
of Bologna, 1564: "Regarding the execution of the Tridentine 
decree, we command all our brothers that in future elections the 
form here given must be observed. Let each of the electors write 
the name of a candidate on a schedule or have it written, but the 
elector's name shall never be written, and it shall not be revealed 
either to the scrutineers or to the one confirming. Election by 
common inspiration and compromise having therefore been abol- 
ished, election by scrutiny must always be observed." From this,, 
then, it is clear that in the Order of Friars Preachers there can 
be no canonical election except by scrutiny, and in order that for 
the future the form of electing prelates in the Order would be 
firm, stable and certain, the capitulars of Bologna not only or-^ 
dained that every canonical election should be by scrutiny, but 
they even decreed the form of such elections. 

' d. II. c. IL 



CHAPTER III 
Qualifications of Electors 

The end of canonical election is to provide fit and worthy- 
prelates or superiors for ecclesiastical colleges. Hence bishops, 
generals, abbots, provincials, local prelates, dignitaries of cathe- 
drals, canons and the like are canonically elected, so that worthy 
and competent prelates or ministers may be provided for various 
ecclesiastical charges or functions. From this final cause, which 
is the first cause, follows the efficient cause. And since election 
is an act, its efficient cause are agents or electors, who to elect 
validly, must be possessed of certain qualities, determined either 
by common law, or by particular statutes of the different 
churches or institutes. In the present chapter, we shall occupy 
ourselves especially with an exposition of those qualities or con- 
ditions, which electors must necessarily have in order lawfully 
and validly to take active part in canonical elections. 

Elections belong strictly speaking to the college or com- 
munity for which a prelate is to be elected.^ This ordinance of 
common law has been adopted by the greater number of religious 
orders, in which, according to the statutes of the respective or- 
ders, either all the prelates — even local — are elected by the par- 
ticular convents, as in the Order of Friars Preachers ; or pro- 
vincials by provincial chapters ; or generals by a general congre- 
gation, as in the Society of Jesus. Either, therefore, prelates are 
not elected, but instituted by supreme authority, as for instance, 
the pope very frequently institutes bishops, or if elected, they 
are elected by those colleges over which thy are chosen to pre- 
side, unless custom, privilege, or the will of higher authority 
dispose otherwise. 

Some canonists hold that at least three persons are required 
to constitute a college.^ Others, on the contrary, say that two 
suffice.^ The latter seems to be the more probable opinion, for 
in the chapter "Nullus"* we read: *'Let no presbyter be elected 
in a church whose congregation numbers two or three, except 

^ Cap. Congregatio 43. q. 7. 

"Sylvius, Cap. 1 de electione; Castell, de elect, c. 5, n. 43; Donatus, 
tract. 4, q. 6, n. 3. 

^ Innoc. Cap. dilecto; Jo. And. c. statutum ; Rodriq. II, q. 53, a. III. 
Barbosa, c. 1. de elect, n. 3. 

* I. de elect. 



32 CANONICAL ELECTIONS 

by canonical election of the same two or three." In particular 
law the statutes of each order must be observed. 

In the Order of Friars Preachers no convent can elect a prior, 
tmless it has three vocals (Rome, 1601). Donatus^ adds that a 
general chapter cannot by its own authority establish contrary 
legislation. The ordination of the Chapter of Valencia (1596) 
which required that these vocals must have completed twelve 
years from profession, w^as replaced by one of the Chapter of 
Rome (1608) which reduced the requirement to six years. The 
ancient discipline of the Chapter of Valencia was restored by the 
Chapter of Louvain (1885), but again modified by the Chapter of 
Avila (1895), which decreed that every priest has active voice in 
all canonical elections, provided he shall have completed nine full 
years from his first profession, and have satisfied the other con- 
ditions required by law. 

Camillus notes that where there are but three electors, they 
cannot validly elect one of their own number, because the one 
elected must have a majority of two votes, and this majority no 
one of the three can obtain unless he elect himself, which is not 
permitted and would render the election null. 

Although at least two are required to constitute a college, 
still the rights of an established college can continue in one alone. 
If, for example, all the members of a college, one alone excepted, 
should die, be excommunicated, or in some other way rendered 
disqualified to elect, the one remaining could lawfully and validly 
carry on an election, provided that he would not elect himself.- 
Hence if one or two of a college of three vocals renounce their 
right, such renunciation can in no way prevent the one left from 
voting, should he wish to do so. This discipline was approved 
by a response of the Sacred Congregation of Bishops and Regu- 
lars, August 21, 1690, which pronounced valid and confirmed an 
election held in a convent of Ripano, that had been vetoed by the 
provincial because, one of three vocals renouncing his voice, the 
other two had conducted an election. 

Having shown that a college of at least two or three mem- 
bers is necessary to hold a lawful and valid election, we shall now 
consider the qualifications or conditions required of vocals for 
the exercise of their right to vote. 

1. Natural law requires that an elector be in actual posses- 
sion of the full use of reason. Hence natural law excludes those 
who have not reached the age of puberty, the demented, those in 

■Sylvius, electio I. n. 2; Hostiensis, c. 2 de post. 



CANONICAL ELECTIONS 33 

a State of perfect intoxication, those in such a state of anger as 
to render full deliberation impossible. The demented or insane 
may validly elect during a lucid interval, but lucid intervals must 
not be presumed, for once insanity has taken possession of a per- 
son, it is considered to be present always, unless the contrary be 
proved. And if drunkenness or anger does not destroy the free 
use of reason, neither will either of these vices ipso facto irritate 
an election. Just as for contracts or promises, so also for canon- 
ical elections, that deliberation is necessary, which is required 
to constitute a mortal sin.^ 

The infirm, aged, blind, deaf, and the like are not unqualified 
for the exercise of active voice, since they can freely deliberate 
on the one to be elected. The blind, however, are counselled to 
renounce their right, and Sigismund extends this counsel to the 
deaf, so that they may act with a safer conscience. 

II. Electors must be ecclesiastics, that is, clerics or relig- 
ious, and not laymen. In elections of ecclesiastical prelates, the 
vote of a lay person is not only null, but it invalidates such elec- 
tions. Although a layman may exercise suffrage in canonical 
elections by special papal privilege, they can never acquire it by 
custom.^ Laymen may also be admitted, not to take active part, 
but to defend and protect the electors, or to see that the form 
is observed. 

III. Only those who compose the college or community to 
be provided can be electors, for since election belongs per se 
primo to a college, it follows that they alone can elect, who are 
assigned to the college. 

In the elections of regulars only those professed enjoy active 
voice, the others, not yet incorporated into religion, are not 
strictly speaking religious. Tacit profession is sufficient, for he 
who is tacitly professed, is lawfully professed, and is a member 
of religion provided it is evident he has completed a year of pro- 
bation according to the Council of Trent.^ Religious can elect 
prelates for those institutes only in which they were professed. 
If a religious pass to another order he cannot take part in its 
elections before his profession, and according to some he does 
not acquire active voice even after his profession.* It is further- 
more required that the elector belong to that body in the con- 

^ Antoninus, Cajetan, Sylvius. 

*D. Antoninus, I. tit, 16, c. 11; Hostiensis, de elect, n, 5; Donatus, 
3, tract. 4, q. 4. 

^Layman, IV, tract, 2, c. 12, n. 3; Lezana, v. electio, n. 2. 
* electionibus, ex Clem.; Castell. c, 5, n, 58. 



34 CANONICAL ELECTIONS 

vent or monastery, in the general or provincial chapter, in the 
congregation or college whose office it is here and now to elect. 
Wherefore chaplains or perpetual beneficiaries of a cathedral, 
who are not members of the chapter, are not admitted to canon- 
ical elections. Lastly, to be a legitimate elector, a religious must 
have become so in accordance with the particular statutes of his 
order or institute. 

Thus in the Order of Friars Preachers, to be an elector for a 
conventual prior, or for his companion to a provincial chapter, 
one must have been assigned to the convent in which the election 
is to take place two months before date of said election. There 
are, however, some exceptions to this doctrine, which will be 
given below\ 

From what has been said it follows that the religious of one 
convent cannot take part in the elections of another, and that a 
prior or local prelate of one convent cannot vote for a prior or 
prelate in another except by special privilege. In accordance 
wath this statute of common law the Constitutions of the Order 
of Friars Preachers decree that a vocal or prior of one convent 
has no voice in the elections of another, unless he shall have been 
sent to the other as vicar of the election.^ And since generals 
and provincials belong to no convent in particular, they also have 
no voice in the elections of conventual prelates, although accord- 
ing to the particular statutes of some orders they may institute 
said prelates. The general and provincials of the Order of Friars 
Preachers do not enjoy suffrage in conventual elections, but it 
pertains to them to confirm these elections, and in case of devo- 
lution to institute local prelates. 

The vocals cannot of themselves admit an outsider to take 
part in an election, because a college has no powder of conceding 
suffrage to any one, w^ho does not already possess the faculty by 
papal concession,^ This doctrine is not admitted by all, though 
the majority of canonists agree in this that the right of exercis- 
ing active voice may be prescribed by custom. And since such 
a custom is contrary to common law, a prescription of forty years 
is required to establish it. Moreover, to prescribe a custom 
against common law, a colored title at least is also required. To 
prove this custom it is not required that the right of voting has 
been exercised many times during the forty years, for one act 
alone. suffices when the one elected possesses the benefice for 



^ Passerini, De elect, can., c. 10, n. 16. 
^- lb. n. 17. 



CANONICAL ELECTIONS 35 

forty years/ An outsider, having once prescribed the right of 
suffrage, may not be ejected from an election, but should be sum- 
moned. But if it chance that his vote is not numbered with the 
others, the election is not vitiated. 

IV. The fourth condition requires electors to be present in 
the particular place in which the college is congregated to hold 
the election. For since election belongs per se to the college, no 
elector can take part in it unless he is collegiately present, where 
the college is to hold the election. 

Common law forbids absent capitulars to send their votes in 
writing. Some canonists, however, assert that contrary.^ Others 
say that a vote sent by sealed letter is not against the substance 
of the law, and base their opinion on this that in the Congrega- 
tion of Saint John the Baptist in Portugal every religious sends 
by letter his vote for the election of a general. But these con- 
trary opinions cannot be admitted, for the true doctrine is clearly 
expressed in the chapter "Si quis justo" :^ "An absent capitular 
cannot send his vote by letter, because votes must not be ex- 
pressed previous to the scrutiny, but cast secretly and separately 
in the scrutiny itself." The mode of election practiced in the above 
named Portuguese Congregation adds no strength to the con- 
trary opinion, for this was done according to a particular statute 
confirmed by papal authority. Custom legitimately prescribed 
could also permit suffrage in writing.* But aside from privilege 
or custom, absent capitulars cannot send their votes in writing, 
even with the consent of the chapter.^ 

The infirm, who are confined in the convent of election, have 
the right to vote, and the scrutineers should go to them, and 
receive their votes according to canonical form. Sigismund con- 
tends the same holds for those who are at a distance from the 
cloister, in the city for example. But others think that such 
electors should send a procurator.^ We prefer the latter opinion, 
for it seems unreasonable that — the electors assembled and all 
things in readiness — the scrutineers should be held to go to the 
city to receive the vote of an infirm elector. But in such cases 
custom and the particular laws of each college must be observed. 

In the Order of Friars Preachers all who are not present in 
the convent of election are considered to be absent.^ Hence the 



* Rota, decis. 548, n. 6, par. 5. 

'Azorius, L. 13, c. 10, p. 2.; Reiff. L. 1, t. VI, n. 106. 
^De electione in VI. 

* cap. fin. de consuetudine. 

^ Sigis. dub. 13, n. 1; Castell. c. 5, n. 65; Barbosa, n. 17; Donatus 
tract. 4, q. 17. 

^ Boerius, Castell, Mandag, Sylvius. 
^ Consti. n. 546. 



36 CANONICAL ELECTIONS 

scrutineers are held to go only to those infirm who are confined 
in the convent of election. Some extend this to all electors who 
though present in the convent of election, are nevertheless 
through a just and lawful reason unable to be present in the 
election chamber.^ Wherefore in this Order only those electors 
enjoy the right of active voice who are personally present in the 
convent of election. 

Electors legitimately absent do not, however, want for a 
means of casting their votes, for common law permits them to 
be present by proxy. The chapter "Quia propter" lays down four 
conditions on this point: 1° the absentee himself must constitute 
the procurator; 2° he must be legitimately detained; 3° he must 
confirm his reason by oath, if the college so desire ; 4° the proc- 
urator must be a member of the electoral college. The chapter 
"Si quis justo" adds three conditions more to those already given : 
1° the absent elector may institute several procurators, provided 
that he institute them in solidum ; 2° the procurator must cast 
the two votes for the same candidate, unless the mandate was 
given for a certain person — in which case he may cast his own 
vote for the candidate of his choice ; 3° if no one from the college 
will accept the procuration, he cannot send an outsider without 
the consent of the chapter, nor can he on this account send his 
vote in writing. 

A few things are to be noted concerning these conditions. 
He is considered absent, who is so distant from the place of elec- 
tion, that the scrutineers are not held — according to their re- 
spective statutes or customs — to go to him personally to receive 
his vote. Procurators can be sent by those absentees only, who 
are detained in a place to which a procurator can be conveniently 
summoned. A vocal remaining in a place to which a procurator 
cannot be conveniently summoned, loses the right of active 
voice, and need not be advised of an approaching election.^ But 
he always has the right — even though the summons to election 
has already been given — of acceding to a place, whence he may 
elect or summon a procurator. Impediments constituting legiti- 
mate detention from the place of election would be grave illness, 
deadly enmities, imprisonment, citation to a higher tribunal, and 
the like. Moreover, the impediment must be such, that even at 
the time of election it would prevent his personal appearance. 
If a procurator is admitted without an oath, the chapter thereby 



^Tabien., Castell. 
'Passerini, lb. c. 10, n. 38. 



CANONICAL ELECTIONS 37 

renounces its right to make exception to the reason of the vocal's 
absence. The college, if it please, may admit a procurator of one 
not detained by an impediment.^ If the vocal should die before 
the election takes place, the office of procurator ceases, but if the 
electoral body, unaware of the vocal's death, admits the vote by 
proxy, the election is valid. No capitular is bound to act as 
procurator for an absent elector, and if an outsider is instituted, 
the college may refuse to admit him, if it sees fit. Although a 
procurator cannot cast his own vote for one candidate, and that 
of him whose procurator he is for another, unless the procura- 
tion has been given for a certain person, still if two candidates 
are equally eligible, he may in conscience cast one vote for each, 
unless this be forbidden by law ; if, however, the two candidates 
are of unequal merit, the procurator is bound to cast the two 
votes for the more worthy. Procurators who do not belong to 
the college must have all the qualifications required of vocals. 
A procurator may sub-delegate if this faculty be conceded in the 
mandate, otherwise sub-delegation is doubtful and uncertain. 
When several procurators are instituted in solidum, "melior est 
conditio occupantis" ; if two or more should reach the electoral 
chamber at the same time, that one is to be admitted, whom the 
chapter or majority of the chapter agrees upon, if the chapter 
can come to no agreement, then the one first named in the man- 
date is admitted. 

All absent electors can elect a procurator unless prohibited 
by particular statute. The Sacred Congregation of the Council 
declared valid elections by proxy in religious institutes, unless 
otherwise ordained by the particular laws of the institutes.^ In 
the Order of Friars Preachers absent vocals are forbidden to 
elect either by letter or by proxy. 

V. Electors must be in sacred orders, in those of the sub- 
diaconate at least. This condition excludes two classes of per- 
sons from elections : lay brothers and clerics not in sub-deacon's 
orders. Under the name of lay brothers we do not include monks 
or religious, who are deputed to choral duties and the divine min- 
istry, for in ancient times these monks — even though there 
chanced to be priests or clerics among them — always elected their 
abbots. Neither do our remarks refer to those religions, mil- 
itary orders, for example, in which lay religious conduct the elec- 
tions, but only to ecclesiastical colleges in which clerics are ap- 
pointed to celebrate the divine mysteries. 

' lb. n. 39. 
''lb. n. 40. 



38 CANONICAL ELECTIONS 

This condition was prescribed by the following decree of 
the Council of Trent :^ "For the future no one in cathedral 
churches or secular colleges shall have a voice in chapter — even 
if freely conceded by others — unless he be constituted in the 
order of subdiaconate at least." Some authors contend that this 
decree includes institutes of regulars, first because the decree 
speaks absolutely of all ecclesiastical colleges, and secondly be- 
cause this is the general practice of religious orders.^ But others 
hold the opposite, and base their opinion on a declaration of the 
Sacred Congregation of the Council (May 22, 1577) that religious 
even though not in sacred orders could have voice in elections, 
since the Tridentine decree did not include monasteries of regu- 
lars, but only their cathedral churches.^ However, in this point, 
as well as in others, the particular laws and customs of each 
order must be observed. 

Before passing to the next condition, we shall speak briefly 
on a few points that are frequently controverted among canon- 
ists. Although some hold that lay brothers and clerics not in 
major orders cannot by custom prescribe active voice in canonical 
elections,* still the opposite seems more probable. For the chap- 
ter "De consuetudine" says that custom reasonably and legiti- 
mately prescribed derogates from a law.^ For what can be de- 
stroyed by a just law% can be destroyed by a just custom, which 
is equivalent to a just law. Secondly a cleric who during an elec- 
tion satisfies the required conditions — in respect to age, reception 
of orders, and the like — must be admitted to the election, but the 
electors are not held to await such a person's becoming qualified.® 
This is extended to one who by papal dispensation has been or- 
dained before the required age. It also holds for those who have 
been surreptitiously and illegitimately ordained.'^ But those thus 
ordained are ipso facto suspended,^ and hence must not be admit- 
ted until the suspension shall have been removed. Thirdly, a 
capitular having the power of jurisdiction, but not of orders, can 
transact those matters of election which pertain to the jurisdic- 
tion of his office, although he cannot vote in the election itself. 



*sess. 22, cap. 4 de reform. 
^Sylvius, electio I, n, 3; Suarez II, c. 4, n. 5. 
^Tab., electio I, n. 5 ; Rodriq. II, q. 52, a. 5. 
*Barbosa, c. 2, n. 3; Donatus, q. 6, n. 5. 

^Panormitanus, lb. n. 9; Sanchez, 1. 7 de mat., d. 4, n. 14; Suarez, 
1. 7 de legibus, c. 19, n. 14. 
^ Const. D. II c. 11. 
^ Clem. 2 de aetate. 
*Pius II. "Cum ex sacrorum." 



CANONICAL ELECTIONS 39 

nor be present therein. Wherefore, in the absence of the dean, 
the archdeacon, even though not a sub-deacon, can convoke the 
chapter, propose what is to be done, and receive resolutions, for 
these things are offices of jurisdiction and not of orders. Like- 
wise in the Order of Friars Preachers a vicar sent from one con- 
vent to govern another — passing over for the present the two in- 
stances in which he can be sent with active voice — assembles the 
chapter, gives the necessary instructions, absolves the vocals 
from excommunication, when necessary, and in fine does every- 
thing which pertains to his jurisdiction. A sub-prior will act in 
like manner, if it chance that he has no voice in the election 
(Rome, 1601). Finally, one admitted to a chapter of canons by 
dispensation, is not thereby dispensed to receive sacred orders ; 
hence one so dispensed, does not in virtue of this dispensation 
acquire active voice in election.^ 

VI. Vocals censured with sentence of excommunication are 
also deprived of active voice. Excommunication is either major 
or minor. The latter prohibits the reception of the sacraments, 
and no longer exists since the publication of the Constitution 
'**Apostolicae Sedis."- The former cuts a guilty christian off from 
the Church and deprives him of its spiritual favors. Those cen- 
sured with major excommunication are divided into two classes : 
according as they are to be shunned (vitandi), or tolerated (tole- 
rati), or, in other words, according as they have or have not been 
formally pronounced excommunicated by the Church. 

Those to be shunned cannot take part in elections, and were 
they knowingly admitted, the election would be ipso facto null 
and void. Were such a person admitted in good faith, the elec- 
tion would be valid, provided his vote did not decide the election. 
It would likewise be valid if he could not be expelled without 
grave danger or scandal. But in this case, the electors must pro- 
test before witnesses, publicly, if possible, against his presence, 
and declare his vote will not be considered.^ If the electors are 
not certain that said person has been formally censured, they 
cannot eject him from the chapter, because in doubt every one 
must be left in peaceful possession of his rights. 

In regard to a tolerated excommunicated person, if no one 
makes exception to his being present, the election is valid, and 
cannot be annulled. The vocals commit no fault in admitting 
him, for they are not obliged to avoid one whom the Church tol- 

'Rota, June 23, 1606. 

= cf. S. C S. O. ad IV. Jan. 6, 1884. 

' Sylvius, electio, n. 17. 



40 CANONICAL ELECTIONS 

erates. Moreover, election being an act of public office, what- 
ever is done by a tolerated excommunicant is sustained by the 
Church. Wherefore, if all the electors are thus excommunicated, 
the election is valid, for excommunication does not deprive a per- 
son of office or jurisdiction until a formal declaration has been 
made to this effect. The election is also valid, if conducted by one 
vocal only, and he a tolerated excommunicant.^ The same holds 
if an exception of excommunication is opposed after the election 
has been concluded. If the exception v^ere interposed prior to 
the election, the election is voidable. If it is evident, or even 
doubtful ,that the election was decided by the excommunicant's 
vote, it must be cassed ; but if it is certain that his vote in no way 
decided the election, said election must be declared valid, and 
sustained. If, in this hypothesis, particular statutes require un- 
animous consent for a valid election, one opposing vote of the 
excommunicant would not invalidate the election, for the candi- 
date would have received the unanimous vote of all the qualified 
vocals, which alone constitutes a unanimous election. 

In the election of a Roman Pontiff excommunication does 
not nullify, even though every elector be excommunicated.^ To 
avoid the danger of schisms in the Church, it was most wisely 
decreed that exceptions of excommunication cannot be resorted 
to in papal elections. 

In the Order of Friars Preachers no excommunicant should 
be deprived of active voice, unless he has been pronounced ex- 
communicated by judicial sentence, but an exception may be 
made against him.^ The electors can and should eject a notorious 
excommunicant, if this can be done without scandal, but they 
are not bound to do so.* The excommunicant himself sins in 
taking part in an election. 

VII. Suspension is another censure which deprives a vocal 
of the right of exercising active voice. It is a censure which de- 
prives a cleric, wholly or partially, of the power of orders, office, 
or benefice. A person simpliciter suspended is one who is sus- 
pended from office and benefice, such a one, therefore, cannot 
vote in canonical elections. The same is true of him who is sus- 
pended from office, for by suspension from office we understand 
suspension from all clerical exercises. Suspension from one par- 
ticular office, however, does not prevent one from taking part in 

^ Suarez, sec. 2, n. 3. 

'Pius IV. "In eligendis"; Greg. XV. "Aeterni Patris"; Pius X. 
"Vacante Sede Apostolica." 
^ Const, n. 521. 
*Passerini, lb. n. 83. 



CANONICAL ELECTIONS 41 

elections. Suspension from a benefice does not deprive an elector 
of his right to vote, for this species of suspension takes from a 
person the right of receiving the fruits of a benefice, but in no 
way interferes with the right of election which is an official act. 
Suspension from orders does not prevent one from electing, be- 
cause election is not an act of orders, but of jurisdiction.^ The 
discipline given in the preceding section for excommunicants — 
both tolerated and those to be shunned — obtains also for those in 
like manner suspended.^ Neither major nor minor suspension 
deprives a vocal of the right of sufifrage. To sum up only sus- 
pension simpliciter from office and from election for a particular 
reason deprives one of active voice, suspension from a benefice 
or from orders do not. A suspended vocal sins in exercising 
active voice, of which he has been deprived. 

VIII. Not only excommunication and suspension, but also 
interdict takes away the right and faculty of voting.^ And since 
interdict is an ecclesiastical censure, and the chapter "Ad evi- 
tanda" speaks universally of censures, what has been said of ex- 
communication is proportionately understood of interdict, namely 
that an interdicted elector not formally so declared by judicial 
sentence, validly exercises suffrage, though he sins in so doing. 
We shall speak later of election held in interdicted places. 

IX. The ninth condition excludes from elections one who has 
incurred irregularity.* Others, however, hold contrary.^ Both 
parties base their opinion on a text in the chapter "Is qui," which 
states that he who celebrates in an interdicted place incurs irreg- 
ularity, and thereby becomes disqualified and should not be ad- 
mitted to elections with the others. The negatives apply this 
doctrine to all species of irregularity, while the affirmatives re- 
strict it to that irregularity alone, which is incurred by celebrat- 
ing in an interdicted place. We prefer the second opinion, for 
since irregularity impedes only the execution of orders, and not 
of jurisdiction, neither does it per se nor consecutively impede the 
act of electing which is not an act of orders but of jurisdiction. 
Hence we think it more probable that irregulars can exercise 
suffrage, except in cases where they have incurred irregularity 
by celebrating in an interdicted place, or have become infamous, 
or have been condemned of homicide.® In these cases the priva- 

^Ib. n. 95. 

^Suarez, V, disp. 26, sect. 2, n. 2; Barbosa I c. 19, n. 23. 

'Hostiensis, lb, n. 7; Sylvius, q. 4. 

* Sylvius, Miranda, Layman, Barbosa, Donatus, 

® Suarez, Bonacius, Sigismund. 

•Const. Pius II., Pius V., Sixtus V. 



42 CANONICAL ELECTIONS 

tion of active voice is not by reason of the irregularity, but a 
penalty annexed.^ Moreover, even in these cases the irregularity 
must be formally declared by judicial sentence, before those v^ho 
have incurred it can be excluded from an election. In the Order 
of Friars Preachers all who have incurred irregularity in any v^ay 
are deprived of active voice (Narbonne 1354). 

X. In addition to the above requirements, electors must also 
have all the conditions required by the particular statutes of their 
various colleges. 

In the Order of Friars Preachers several conditions are re- 
quired by particular statutes for conventual suffrage: 1° Vocals 
must be assigned to a convent two months previous to the va- 
cancy of the priorship. The two months begins on the day when 
the assignation is read publicly in the convent ad quem. To 
elect a socius to a provincial chapter, the vocal must be assigned 
to the convent two months before said election takes place. This 
requirement is not necessary : (a) in case of the sudden death 
of a prior. Likewise, when the office becomes vacant either by 
the death, removal or resignation of the prior, the subprior ac- 
quires active voice, even though he has been assigned to the con- 
vent for less than two months ; (b) when a vicar has been sent 
by the provincial to conduct an election. A vicar may be thus 
sent only in two cases : when there is a great dissension among 
the vocals, or when their incompetency is such that no one among 
them knows how to direct the election proceedings; (c) when 
a lector (primarius vel unicus) has been appointed to take charge 
of the studium, or when an assignment has been made by the 
definitors of the provincial chapter; (d) when a vocal who has 
been prior of another convent, returns to the convent of his for- 
mer assignment on the expiration of his office ; (e) when a vocal 
two months previous to election is assigned to another convent 
as prior or for any other office, he retains his voice in the convent 
a quo until a new prior is elected, confirmed and installed. 

2° They must have completed nine years from first profes- 
sion and have been ordained priests (Avila, 1895). Lay brothers 
who are transferred to the clerical state, do not acquire active 
voice until twelve years from the date of transferral (Valladolid, 
1605; Rome, 1629). 

3° They must have completed their studies, and have re- 
ceived approbation for hearing confessions unless an election 
occurs within six months from the completion of their studies. 



Passerini, lb. n. 105. 



CANONICAL ELECTIONS 43 

4° They cannot by reason of a new assignation vote twice 
or more in the same year. Neither can they who renounce their 
vote in one convent elect in another under pretense of a new as- 
signment. Exception is made for regents, lectors, masters of 
studies, and sub-priors, not however for lectors of cases of 
conscience. 

5° A prior who, during his term of office, is assigned by sim- 
ple assignation to the convent of which he is prior has no vote in 
the election of his successor until two months after the expira- 
tion of his office. If during his office he be assigned to another 
convent, he can take no part in the elections of this convent unless 
he has served the convent in good faith for two months after the 
completion of his priorship. 

6° Before brothers of one province can vote in another they 
must have been assigned for a year, or at least the greater part 
of a year in the province in which the election is to take place. 
There are two exceptions to this discipline : the first is when a 
brother of one province is affiliated to another, he immediately 
acquires active voice, provided he has the other requisites of 
common law and particular statute. The second case is when 
brothers go from Spain to the Indies, if eligible by law, they ac- 
quire voice as soon as they shall have reached those provinces 
(Rome, 1589). 

7^ Vocals must not remain outside the cloister, for those 
dwelling outside the cloister under any pretext whatsoever — 
even with permission of superiors, lose active and passive voice. 
Therefore, those raised to dignities outside the order, or who 
have received benefices, no longer enjoy suffrage. This must 
be understood of secular benefices, not of those united to the 
order. Hence pastors of churches connected with the order are 
not considered outside the cloister while in their parishes by the 
obedience of superiors.^ But chaplains of secular churches and 
of other orders, provided they remain outside the cloister day 
and night, confessors of nuns, kings, and princes, theologians 
of bishops and cardinals, and all others outside the obedience of 
the order, even with permission of superiors, can neither elect 
nor be elected (Rome, 1601). Those who remain outside the 
order without the consent of superiors cannot exercise pass- 
ive voice until ten years after their return (Rome, 1525). 

Those who for any reason, except for the office of Sacred 
Inquisition, permanently remain outside their convents for more 
than six months immediately previous to an election, cannot 
^ Camillus, c. 5, n. 8. 



44 CANONICAL ELECTIONS 

exercise active voice therein. Likewise, those who ordinarily 
dwell outside, v. g., in a vicariate erected with apostolic author- 
ity, are not admitted to conventual elections (Lvons, 1891 ; 
Vienna, 1898). 

The Chapter of Rome (1553) declared that the master gen- 
eral could dispense from the laws regarding the exercise of voice 
by one outside the cloister. But a difficulty here arises, for the 
law concerning secular benefices is not a constitution of the or- 
der, but a decree of Sixtus IV (1478). And since a general can- 
not dispense in papal legislation, we think that the general can- 
not admit to voice a vocal holding a secular benefice, unless he 
renounce it — although he can dispense him from remaining in 
the convent.^ 

XL Electors cannot vote in elections, if they have been 
deprived of voice. But they should not be excluded before they 
have been declared deprived by judicial sentence.- In the Order 
of Friars Preachers this declaration must be made one month 
before the time of an election, or when in the congregation of 
vocals one is found to lack the conditions required for exer- 
cise of voice. 

One juridically deprived of voice should be excluded from 
the chapter even with force, if necessary, except when he makes 
a legitimate appeal, which suspends the sentence and its effect. 
The discipline concerning those deprived of voice but tolerated 
and those to be shunned, and likewise that of interposing excep- 
tions is the same as that given above for excommunicated vocals. 

XII. All who have been branded as infamous are excluded 
from election. Infamy is the loss of reputation, and arises either 
from law or from fact. Infamy of fact does not destroy the fac- 
ulty of voting, for it very frequently is occasioned by ignorance, 
sarcasm, imprudence, or hatred ; neither does it prevent one from 
being a scrutineer. Those branded with infamy of law cannot 
elect, for election is a legitimate act, and since legitimate acts 
are prohibited to the infamous, it follows that one thus branded 
cannot elect. Infamy of either kind is not incurred before juridi 
cal sentence has been given to this effect. Hence before he has 
been juridically declared infamous, an elector can validly take 
part in elections, and does not sin in so doing. 

^ Passerini, lb. n. 124. 
nh. n. 135. 



CHAPTER IV 
Convocation of Electors 

Having established the efficient cause of election in the pre- 
ceding chapter, we shall now offer a consideration of its formal 
cause. And since election pertains per se primo to a college, its 
formal cause consists in the collegiate congregation of those 
electors who compose the college. To bring this about, the 
electors must be summoned. Hence a treatment of the formal 
cause of election is an exposition of the doctrine regarding the 
convocation of electors, to which this present chapter will be 
devoted. 

We cannot lay down a particular rule for the convocation 
of electors, for this depends upon the diversity of elections and 
colleges, their respective rights and customs. Wherefore, the 
general rule is that the electors should be convoked by the one 
upon whom this office is imposed by law or custom. If there 
be no such law or custom, then the duty falls to him who is old- 
est in office, unless there be another of greater dignity, in which 
case the latter summons the electors. 

In the Order of Friars Preachers the sub-prior ordinarily 
convokes the electors. If a convent is without a superior, the 
three capitulars oldest by profession elect a vicar, who convokes 
a chapter for the election of a prior, unless other provision be 
made by higher superiors.^ If the sub-prior, whose duty it is to 
assemble the electors three or four days after the vacancy of the 
priorship, or the vicar, if there be no subprior, refuse to call the 
chapter at the request of the majority of the vocals, the oldest 
vocal may do so, and he unwilling, then the next oldest in relig- 
ion, and so on until the election is begun.- 

The convocation of electors is an act of jurisdiction, hence 
it always pertains to him who is the head or superior of the com- 
munity, even though he may have no voice in the election. In 
the elections of conventual priors, or of socii to provincial chap- 
ters, the superior is the sub-prior, or he being absent, the vicar, 
unless the provincial or general appoints a special vicar to pre- 
side at the election. The superior of a provincial election is the 

' Const. D. II. C. II. 
-Const, n. 548. 



46 CANONICAL ELECTIONS 

vicar of the province, but in the election of definitors of a pro- 
vincial chapter, either the provincial himself or more commonly 
the vicar of the province presides. If the provincial is not pres- 
ent at the election of definitors of a general chapter, the presiding 
vicar takes charge. When an election of a master general oc- 
curs, the vicar of the order, even though not a vocal, is the pre- 
siding prelate. Conventual priors cannot convoke a chapter for 
the election of a socius, for special law forbids the prior to take 
part in such elections. 

Those vocals should be called to election qui debent, volunt, 
et possunt commode interesse.^ Therefore all those — whether 
present or absent — who have the right to elect should be sum- 
moned. If there is a custom of not calling the absent, it should 
be observed.^ A period of ten years suffices for such a custom 
to obtain.^ He who is in possession of election, even though his 
right be not a true one, validly elects and should be called, for 
the right of election follows possession. But mere possession 
with common error will not suffice, there is further required a 
colored title conferred by a competent superior.* Exceptions 
made after election against such a vocal are of no moment, even 
though his defects are made manifest, for at the time of the 
election he was in peaceful possession by a common error and 
colored title. For outsiders, however, possession, good faith, and 
colored title are not sufficient, unless the possession were lawfully 
prescribed by an existing custom. We shall return to this point 
on a later page, where we shall explain more in detail who are 
and who are not to be called in certain cases. 

Every vocal is obliged to vote, and is therefore obliged to 
be present at elections, for this obligation — supposing the insti- 
tution of election — is based on natural law. A person possessing 
a faculty necessary to the common good is bound to exercise that 
faculty. This obligation does not bind per se under pain of mor- 
tal sin or even venial ; it could bind either way, or it could acci- 
dentally cease. Hence the gravity of the obligation is to be reck- 
oned in proportion to its necessity to the common good. If, for 
example, a heretic were to be elected bishop, an elector is bound 
— whether the outcome be doubtful or certain — to do all in his 
power to prevent the election, even at the risk of his life.^ 

^ cap. Quia propter. 

^ Sylvius, electio I, n. 6, d. 2, 

^Miranda, q. 26, n .6; Barbosa, I, c. 19, n. 89. 

*Cajetan, confessionis iteratio; Sylvius, Confessor 1 q. 19. 

"Passerini, lb. c. 11, n. 22. 



CANONICAL ELECTIONS 47 

If an elector is in doubt as to whom he should elect, Sylvius 
maintains he is not bound to vote at all.^ We prefer the opposite 
opinion, for the renunciation of a vote very frequently favors the 
election of an unv^orthy candidate. Should he consider his right 
to vote doubtful, he may renounce it. But if he is certain of his 
right, he is bound to vote for the one he considers the most v^or- 
thy, for by renunciation, he at least exposes himself to the danger 
of favoring an evil and unjust election. Under renunciation of 
voice comes also the casting of blank votes, for these votes are 
not computed, but subtracted from the whole number, and there- 
fore affect the election, and could further the election of an un- 
worthy candidate. Electors are therefore forbidden to cast such 
votes, unless they are certain that by so doing, no injury will 
accrue to the community. 

The above principles are indeed true and should be adhered 
to, still in practice it generally makes slight difference to the 
community if one or two electors absent themselves from an 
election. Hence renunciation of voice is not of its nature a mor- 
tal sin, because it is not per se a grave injury to the community 
were one of the electors to neglect his duty. Even the negligence 
of the whole chapter is not per se a mortal sin, for it is not 
strictly speaking a grave injury to the community, because in 
such a case the election would devolve by law to the superior. 
And since a prelacy is often better provided for by the institution 
of a superior than by the election of a college, good could follow 
from the neglect of a chapter to vote. But all things considered, 
it is much better and safer for every elector to exercise his right, 
because his not doing so could easily injure the common good, and 
thus constitute a mortal sin were the injury of a serious nature. 

The chapter "Quia propter" says that those should be sum- 
moned to an election, who wish (qui volunt) to take part therein. 
This does not hold when the interest of the Church demands their 
presence, for the good of the Church preponderates that of elect- 
ors. The superior of the election, therefore, the public good 
demanding, can compel an elector to come to an election, and to 
cast a vote de se useful, for to cast a blank vote is not to elect, 
but to renounce one's voice.- 

The decree also states that those must be called who can 
conveniently present themselves (qui possunt commode inte- 
resse). It is important to note that the word conveniently re- 
fers not to the convenience of the electors, but rather to that of 

' Electio 2. n. 15. 
' lb. n. 23 



48 CANONICAL ELECTIONS 

the Church.^ Wherefore, when the necessity of holding an elec- 
tion is so imminent that there is no time to call the electors, or 
when war, pestilence and the like prevents their being called, or 
when by calling them serious injury would fall upon the Church,, 
no summons should be sent to them, notwithstanding any cus- 
tom to the contrary.- For when a grave injury threatens the 
Church, the custom of calling electors must not be observed. 
Cases of doubt are to be settled by the superior of the election,, 
but to avoid subsequent difficulties he should consult the electors 
present, and if possible the superior upon whom the confirmation 
of the election depends.^ 

Even though all the electors could be called without grave 
injury to the Church, still it is not necessary to call those who 
are at too great a distance.* The Gloss holds that all who are 
in the diocese or province must be called. We hesitate to accept 
this principle, for it can easily happen that a vocal, though within 
the confines of a province, is nevertheless at a great distance 
from the place of election, while another outside the province is 
near at hand. It seems, then, we should rather consider whether 
or not the absent vocal can be conveniently summoned. Special 
laws determining the distances must be observed. In the Order 
of Friars Preachers those vocals must be called who are not 
distant more than one day's journey by ordinary means of travel.* 
The law makes no provision for travel by aeroplane. 

Absent vocals whose whereabouts are known, should if con- 
venient be called personally, unless custom ordain otherwise. 
The citation should be made by letter or messenger, and for a 
certain day. If the vocal does not arrive at the accustomed hour 
for holding the election, the other electors may proceed at once 
with the election. If his whereabouts are unknown the summons 
should be left at his home ; if he has no fixed residence, then the 
citation should be made by a public edict on the doors of the 
church, which is situated in a place where he usually stops, or it 
should be read publicly in the chapter. Finally, if his whereabouts 
and accustomed place of dwelling are both unknown, and diligent 
inquiry has been made, the summons is to be fastened on the 
doors of the place in which the election is to be held, or to be 
read in the chapter or at the public table. 

^ cap. "Quod sicut," 28 de electione. 
"cap. "Ecclesiarum," dist. 11. 
^Passerini, lb., n. 33. 
* cap. "Cum inter" 8, lb. 
"^Avila, 1895. 



CANONICAL ELECTIONS 49 

Those present should be summoned orally or by the sound 
of a bell, but the electors must be previously advised that this 
bell is a summons to the election chamber. In some institutes, 
as in the Order of Friars Preachers, the hour appointed for the 
election is announced either in the refectory or in some other 
public manner on the day previous ; where this custom prevails 
individual intimation is unnecessary. If after a convenient time 
from the ringing of the bell the capitulars do not present them- 
selves, or if they are not at hand at the time appointed, the other 
vocals may proceed without them, though it is better to notify 
them that the chapter is awaiting their arrival. Should all the 
electors be congregated in the same place, they may, if they 
wish, proceed with the election, citation in such a case being un- 
necessary. 

If on the appointed day the election is postponed for a defi- 
nite future time, the electors — even the absent — need not be 
resummoned. But if it is postponed indefinitely a second cita- 
tion must be sent to all. Should the person elected refuse his 
consent, a resummons is not required, for every elector should 
know that another election is to take place as soon as possible. 
Although one citation is sufficient, still if the time and place 
appointed be changed, the vocals should be notified. When a 
time and place are fixed by law or custom, no intimation is needed, 
provided that the vocals know that the office is vacant.^ 

The superior of the election, not of himself but with the con- 
sent of the majority of the electors, can abbreviate the time fixed 
by law, and the day once having been fixed, the superior must be 
present thereon, otherwise the vocals may hold the election with- 
out him. In like manner the majority of the capitulars can re- 
strict the prescribed time, and compel the superior to conform, 
if he can give no just reason for not doing so ; but for a sufficient 
reason he can prevent this anticipation and defer the election to 
the lawful time. And since the law concedes to the superior the 
right of determining the day within the time allotted for elec- 
tion, his judgment — if reasonable — must be accepted by the elec- 
tors, and only in the last hour of the prescribed time — which 
passing, the election would devolve to higher authority — can the 
electors proceed without him. In the Order of Friars Preachers 
it is decreed that after the third or fourth day from the notifica- 
tion of the vacancy of the priorship, the majority of vocals can 
compel the superior of the election to convene the chapter, and 
if he refuse, they may proceed without him.^ 

* Panormitanus, n. 8, de electione. 
-Const, n. 548. 



50 CANONICAL ELECTIONS 

Electors who are disqualified according to natural law should 
not be summoned. Those who have been juridically declared 
unqualified must not be called, but rather expelled if they pre- 
sent themselves. But vocals — no matter however notorious a 
crime they may have committed — who will be deprived of voice 
only by a condemnatory sentence (ferendae sentiae). should be 
cited, for they still have the right to vote, and should any one 
protest, the protestation is not to be heeded. But if the priva- 
tion is to be imposed by a declaratory sentence (latae sententiae), 
they should not be called, and actions for annulment are not ad- 
mitted, for no injury was done by not calling them, since they 
will be judged to have been deprived of voice at the time of elec- 
tion.^ He alone, therefore, whose inhability is so occult that he 
cannot be convicted thereof, can enter a complaint (exceptio de 
contemptu) if he is not called. 

Note here that it is one thing to expel a vocal, and another 
not to call him. The first takes away the possession of voice, so 
when inhability requires judicial sentence, it is not lawful to 
expel a disqualified vocal by private authority. Not to call a vocal 
does not deprive him of his possession, but merely signifies he 
has no voice. No injury is therefore done in the latter case, for 
since he has already been deprived of voice by law, he has for- 
feited the right to be cited, although he still retains the right not 
to be expelled and deprived of his possession. For if such a per- 
son has a right that his possession be not taken from him, he has 
not for that reason a right that there be given to him something 
he does not possess.- To avoid subsequent trouble it would be 
better to call him, and admit him under protestation. But the 
electors are not bound to await his arrival — even though called^ 
and he cannot enter a complain, because he has no right to suf- 
frage. Some hold he can bring suit for expenses contracted, be- 
cause the summons was an occasion of loss to him.^ 

Should an elector renounce his his voice, and afterwards re- 
gret his having done so, he may reclaim it, and should be cited 
and admitted to the election, otherwise he can bring action 
against it. Affairs transacted in the meantime are valid, but he 
must have part in those that follow. For active voice is conceded 
for the public good, and one renouncing something pertaining to 
the public good always has the obligation of reassuming it. 

If absent vocals — sufficient time having been given — do not 
come to the chapter at the appointed time, they are presumed to 

^Innoc. c. Cum Vintonien; Sylvius lb. n. 1; Barbosa, c. 2, de post, n. 4. 
- Sigismund, d. 10, n. 5. 
■^Hostiensis, Panormitanus. 



CANONICAL ELECTIONS 51 

have alienated themselves from the electoral body, but if they 
arrive before the completion of the election, they must be ad- 
mitted to a part in the business which still remains to be trans- 
acted. Those departing from an assembled chapter at the time 
fixed for election are also presumed to have renounced their 
voice, and if by waiting their return the election would devolve 
to the superior, the remaining electors — whether they be many, 
few or even one — can validly elect, and the departed cannot in- 
stitute annulment proceedings.^ Even in the election of a Roman 
Pontiff, if but one cardinal from those cited remain, he can hold 
the election.^ When the allotted time has not expired, a vocat 
for a just reason may appeal for an extension, and the other elect- 
ors even though present in large numbers cannot elect, other- 
wise he who appealed may bring suit against their action, and at 
his instance the election is cassed. But no appeal can be made, 
if the time allowed is about to expire. 

In the Order of Friars Preachers those who do not respond 
to the summons forfeit their right to vote. If, however, after 
the capitulars assemble, the majority should depart, the minority 
cannot proceed with the election until the full time granted by 
the constitutions has expired. Should the majority of those as- 
sembled disapprove of the time and place appointed by the supe- 
rior, and depart from the chapter, the proceedings must be sus- 
pended; if they give approval they may recall their consent at 
any time before the conclusion of election, even though the 
scrutineers have already begun to collect the ballots. Although 
the majority has not the right to neglect the citation, still it has 
the right of not electing, if it seems good to them to defer the 
election.^ 

When all the vocals who have a right to be called to an elec- 
tion are not called, a valid election requires an absolute majority 
— or even two-thirds where law or custom demands — not of 
those present, but of those both present and absent. Thus if 
there were but twenty present of the thirty who have a right to 
be present, the others having been contemned, it is not sufficient 
for the elect to obtain eleven or even fifteen votes, but to be 
elected validly he must receive sixteen, or where a majority of 
two-thirds is required, twenty must be cast for him. Where the 
one elected was nominated by the majority of the thirty the 
election is valid in substance, but each of those contemned has 
the right to file an exception against it. If one or more of those 

^Passerini, lb. n. 93. 

^Ib. 

' Glossa. Const. D. II. C II. 



52 CANONICAL ELECTIONS 

contemned arrive after the scrutiny has been announced, but be- 
fore the pubhcation of the election in the name of the college, a 
new scrutiny must be taken, but the other transactions should 
not be repeated. If one contemned arrive after the election has 
been concluded, the chapter cannot resort to a fresh scrutiny. An 
election does not by reason of vocals having been contemned de- 
volve to a superior, but it pertains to the same electors with the 
addition of those previously contemned. 

The fact that one or more of the vocals are contemned does 
not, according to canon law, render an election void, but it is 
voidable at the instance of the person or persons contemned. Al- 
though an election is invalid if the majority of the electors were 
contemned, because — as shown above — the candidate in such a 
case cannot obtain a majority of necessary votes, it is not, how- 
ever, invalid for the reason that the vocals were contemned, for 
the calling of vocals does not belong to the substance of election, 
but its omission is unjust, because it is injurious and contrary to 
their rights. No prelate inferior to the Holy Father nor general 
chapter can make a law declaring ipso facto null an election, in 
which one or more vocals were contemned.^ But an election to 
which all have not been summoned is not voidable at the instance 
of any one other than those contemned, for the injury is personal 
and it therefore pertains to that person or persons to enter an 
action for annulment or to consider the election lawful.^ 

Annulment proceedings must be filed before the confirmation 
or institution of the candidate, unless it is manifest that the con- 
temned vocal was unaware of the election and confirmation, in 
which case the action should be admitted even after the confirma- 
tion or institution. If he should die during the proceedings, his 
successor may or may not continue the case.^ The burden of 
proof lies with the electors and not with the one contemned, be- 
cause the presumption is that the latter would not have neglected 
to exercise his right. The oath of a messenger is sufficient proof.* 
If the superior of the election cited the absentee in the ordinary 
way by letter or messenger, but for one reason or another he did 
not receive the message, he cannot institute annulment proceed- 
ings, provided it is evident that the superior in good faith did 
what he could to notify the absent vocal, for in this case he was 
not contemned by the superior or electors. But if before the 

* Rota in Toletana Canonicatus, 18 Maii, 1584. 
^Passerini, lb. n. 120. 

' Samuel, n. 2. 

* Glossa in cap. Quod sicut. 



CANONICAL ELECTIONS 53 

election it becomes known that he was not called, and there is 
time to defer the election, it must be deferred until he is notified 
and has had sufficient time to reach the place of election.^ 

The right of religious to enter suit for annulment is sharply 
controverted. If a superior acts as judge, we think he cannot 
forbid an elector to make an exception, because it is a right con- 
ceded by law to all ecclesiastics, and confirmed by common cus- 
tom; hence regular superiors cannot deny such concessions to 
their subjects. But if he acts as a prelate in virtue of the do- 
minion, which is his from the vow of obedience, he can for a 
just reason forbid his subject to file a complaint, because a sub- 
ject is bound to obey the precepts of a superior, and to sacrifice 
his own interest for the common good.^ 



^Passerini, lb. n. 129. 

^ Samuel, Sigismund, Passerini lb. 



CHAPTER V 
Persons Eligible 

The material cause of canonical election is the persons eligi- 
ble for ecclesiastical offices or benefices. Those persons are eli- 
gible who meet the requirements of natural and ecclesiastical 
law, and also of the particular statutes relating to the office to be 
provided. Our paper will be restricted to a consideration of those 
qualifications demanded by common ecclesiastical law, since a 
treatment of those exacted by particular laws pertains to the 
various institutes whose statutes require them. 

I. Natural law requires a candidate to be in full possession 
of his reason, without which no one is capable of directing him- 
self or others to their final end.^ Hence infants and the insane 
are excluded. Those who once suffered from insanity, even if 
restored, are nevertheless still ineligible by positive law until they 
obtain papal dispensation.- The election of such a person is not 
only illicit, but ipso jure null. Habitual drunkards are also in- 
eligible because they are accustomed to deprive themselves of the 
use of reason. Demoniacs, — officially so declared — owing to their 
defective liberty and weakness of mind, are likewise excluded, 
but if freed from their infirmity, they become eligible — their 
restoration, however, cannot be presumed but must be proved. 
For proof one year of health is regularly sufficient, and even then 
if any one makes opposition, a declaration of the bishop is neces- 
sary. Epilectics are irregular and ineligible, but those rarely 
subject to this infirmity are eligible. A lapse of thirty days since 
a previous attack suffices to establish one's recovery.^ 

n. No person is eligible for an ecclesiastical office unless 
he is possessed of such knowledge as is required for a prudent 
administration of the office.* The Council of Trent^ decreed that 
no one could be elected to office who was not acquainted with the 
rudiments of faith and did not know how to read and write. 
Positive law requires that all those promoted to ecclesiastical 
benefices have a knowledge of the latin tongue. Bishops must 

* S. Thos. la 2ae. q. 1, art. 1. 

* Rodrig. II, q. 54, a. 5; Passerini C. 25, n. 6. 
^Turrecrem. I q. 2, c. 2. 

* S. Thos. la 2ae q. 76, art. 2. 
' Sess. 23, c. 4. 



CANONICAL ELECTIONS 55 

have an adequate knowledge of all the sacred sciences, and un- 
dergo a diligent examination therein ; they should be masters, 
doctors, or licentiates in sacred theology or canon law.^ At least 
one half of the dignities in cathedral churches should be con- 
ferred only on masters or doctors in theology, or licentiates in 
canon law.^ Pastors must know how to distinguish sins, to ex- 
plain the gospel and sacraments. Regular prelates are not re- 
quired to have that knowledge which bishops must possess. In 
the Order of Friars Preachers a prior must be able to expound 
the word of God and to speak latin.^ 

Dispensations from defects of knowledge required by natural 
or supernatural law cannot be obtained. The Supreme Pontiff 
alone can dispense from that required by ecclesiastical law, and 
only when there is a well-founded hope that the necessary knowl- 
edge will be acquired within a short time. A bishop for a good 
reason may confer a benefice on one of inadequate knowledge, 
provided that he himself administer the benefice until the one 
appointed acquires sufficient knowledge.* 

III. The nature of election in general requires the elect to 
be a human being endowed with free use of reason, and possessed 
of a knowledge necessary for the prudent exercise of the office to 
which he has been elected. These conditions supposed, we now 
logically pass to the treatment of those which pertain to ecclesi- 
astical elections in particular, the first and foremost of which is 
faith, for faith is the foundation of the whole ecclesiastical hier- 
archy. Those who are wanting in faith are either they who have 
never been baptized, or they who baptized have afterwards lost 
the faith. 

Persons not baptized are ineligible to all ecclesiastical func- 
tions. For not being members of the Church, they are incapable 
of ecclesiastical jurisdiction and administration, and hence if 
elected to an ecclesiastical office, such election would be invalid 
by divine law. Conversion to the faith, however, renders them 
and their baptized descendents eligible. Special legislation of 
some religious institutes exclude the descendents of Jews and 
Saracens from all dignities. Clement VIII ordained that in the 
kingdom of Portugal descendants of Hebrews to the seventh gen- 
eration were ineligible to all cathedral dignities, the principal 
collegiate dignities, parishes and benefices. Neophytes, or adults 

^ ib. sess. 7, c. 1, de ref. 

^ib. 

"Const. N. 507. 

^Palaus N. 12. 



56 CANONICAL ELECTIONS 

recently baptized, are also ineligible. The length of time in which 
they remain in the class of neophytes is left to the judgment of 
the bishop, and during that time he can for no consideration 
grant a dispensation from the irregularity under which they 
labor. ^ Catechumens are for a greater reason ineligible. But 
children of neophytes and catechumens baptized before the use 
of reason are eligible. 

The election of a heretic, according to canon law, is null and 
void. It can be validly confirmed by the Pope, but the confirma- 
tion strictly speaking is illicit.- Those also who defend, favour 
or harbour heretics, together with their children to the second 
generation, are ineligible.^ But a child is not to be deprived of a 
benefice obtained before his father's relapse into heresy. Schis- 
matics, if at the same time heretics, being subject to all the pen- 
alties of heretics, are therefore ineligible. The same is true of 
schismatics who are not heretics, and they remain ineligible even 
if they repent and become reconciled to the Church. If the 
schism be public, the pope alone can dispense ; if occult, bishops 
can dispense by virtue of indult from the Council of Trent.* 

IV. Persons not born in lawful wedlock are ineligible to all 
ecclesiastical orders, dignities or beneficies, unless legitimized by 
subsequent marriage, or by dispensation for the reception of or- 
ders. Even though legitimized in either of these two ways, an 
illegitimate to receive the dignity of the cardinalate must obtain 
a special dispensation.'^ The children of invalid marriages con- 
tracted in good faith are considered legitimate. Illegitimate re- 
ligious are eligible for the reception and administration of orders, 
but not for prelacies or dignities, and neither do they become so 
by religious profession except through dispensation. Common 
law excludes them from prelacies alone, but particular laws of 
the diflFerent institutes exclude them from many other offices. In 
the Order of Friars Preachers they are barred from offices of 
prior, sub-prior, vicar, definitor, preacher general, and master of 
theology.^ In the Order of Friars Minor they cannot be chosen 
general, provincial, guardian, custos, conventual vicar, definitor, 
procurator to provincial or general chapters, discreet, commis- 
sary, visitor, but they may act as novice-master or confessor of 

'Sanchez II, c. 28, n. 11. 

"Passerini ib. n. 68. 

'cap. Quicumque — de haereticis in VI. 

* Sanchez, Barbosa, Garzias. 

^cap. Cum in cunctis. 

® Passerini ib. n. 157. 



CANONICAL ELECTIONS 57 

nuns, provided there be no external jurisdiction annexed to the 
office. 

The Holy Father alone can grant dispensations for the pro- 
motion of illegitimates to sacred orders, dignities, and prelacies. 
Bishops have faculties to grant like dispensations for the recep- 
tion of minor orders and benefices not having the care of souls. 
Religious superiors by special provileges can dispense their ille- 
gitimate subjects from ineligibility to prelacies. In the Order of 
Friars Preachers only the general may grant these dispensations. 
The pope dispenses for the office of general in religious orders. 
Dispensations granted without a just cause by any superior ex- 
cept the pope are invalid;^ if granted by the pope, they are in- 
deed valid, but he sins in granting them.^ It is difficult to say 
exactly what would constitute a just cause. Very many are given 
by authors, such as public good, avoidance of scandal, knowledge, 
good works, necessity, and the like. If vocals knowingly elect an 
illegitimate they commit a grave sin and should be severely pun- 
ished, and the person freely accepting the prelacy sins mortally 
since he violates a precept of the sacred canons. The promotion, 
however, is valid, but he is held to renounce it or to obtain a 
dispensation; if he cannot do either without loss of reputation 
to himself or his relatives, he may retain it.^ 

V. In the fifth place health and strength of body are re- 
quired for eligibility to office. Hence the blind, deaf, or dumb, 
those suffering from a notable defect in sight, hearing or speech, 
those whom infirmity prevents from performing the principal 
duties of an office, those inordinately given to laziness, sleeping 
or eating, those noticeably deformed or mutilated by absence of 
fingers, hands or feet are unqualified. In the Order of Friars 
Preachers, he who is unable to attend to choral and other com- 
munity exercises cannot be elected prior. 

The election of an infirm person is not ipso jure null, for we 
can find no legislation to this effect. If he is morally certain that 
his infirmity is such as will impede him in the exercise of his 
office, the elect is bound to refuse his consent, and to do all in 
his power to prevent confirmation.* But if certainty is wanting, 
he may validly and lawfully accept the office. If after confirma- 
tion infirmity should render him incompetent, he cannot be re- 
moved from office, but a coadjutor must be given to him. In the 

^ cap- Cuncta 9, q. 3. 
^Cajetan, dispensatio II. q. 96, a. 5. 
^Rodrig. t. 1, q. 13, a. 5. 
^Passerini ib. n. 331. 



58 CANONICAL ELECTIONS 

Order of Friars Preachers, generals cannot be removed by a gen- 
eral chapter on account of infirmity, for generals can be removed 
only for those reasons given in the Constitutions, among which 
infirmity is not mentioned, but they can be urged to resign by 
the dcfinitors of the general chapter, if the latter judge such 
resignation to be expedient. 

VI. Incorporation into the ecclesiastical state is required 
before a person becomes eligible for canonical charges or func- 
tions. Those elected to benefices must have at least first tonsure, 
otherwise the election is ipso facto null.^ The presentation of a 
layman to a benefice is also null, unless he become a cleric before 
the time appointed for conferring the benefice. Although Saints 
Nicolas, Severus and i\mbrose were elected to the episcopacy 
from the laity, still these elections were by a special inspiration 
of the Holy Ghost. It is not necessary to be in orders at the 
time of one's having been elected, but the elect must be qualified 
to receive the required orders within the time established by law. 

Religious superiors have power either of jurisdiction or do- 
minion, or both. Since jurisdiction is not per se required in a 
superior, but dominion suffices, it follows that the clerical state 
is not per se necessary. This is clear from the fact that abbesses, 
though not enjoying jurisdiction, have the power of governing. 
Likewise the early obbots, though not clerics, were superiors. 

Superiors of religious communities must be professed in their 
respective community, otherwise their elections are invalid,^ The 
pope alone can confer abbeys and benefices requiring administra- 
tion on those not professed. This being penal discipline, is not 
extended to collation or postulation. Nuns cannot be elected 
abbesses or prioresses before they have completed eight or at 
least five years from profession.^ In religious orders of men, 
common law ordains that one may be elected immediately after 
profession, provided he meet all the other requirements. In the 
Order of Friars Preachers no religious is eligible before he has 
passed twelve complete years from profession.* 

For election to the episcopate one must have been in sacred 
orders for six months.® Hence a sub-deacon may be elected 
bishop. But an election of one not in sacred orders is not de jure 
invalid, for in ancient times members of the laity were elected 

* Sixtus V. Const. Sacrosanctum. 

^ Cone. Trid. sess. 14, c. 10 de ref. 
'ib. sess. 25, c. 7 de regular. 

* Valencia 1596; Naples 1600. 
"Cone. Trid. sess. 22, c. 2. 



CANONICAL ELECTIONS 59 

iDishops in cases of necessity, and history tells us that Saint Am- 
brose while still a catechumen was raised to the episcopate. But 
since priesthood is required under pain of nullity before a bishop 
can be consecrated, a bishop-elect must be ordained priest shortly 
after his confirmation, for he must receive consecration within 
three months from the date of confirmation under penalty of 
losing the fruits of his see, and should he neglect it for another 
three months he forfeits the see itself.^ 

Religious superiors must have received tonsure at least. 
Beneficiaries who are not ordained priests w^ithin a year of their 
having taken possession of a benefice, ipso facto lost it. Deans 
of colleges, priors, and conventual abbots are excepted from this 
general assertion, since in such institutions there are priests by 
whom the care of souls can be exercised. Here, as elsewhere, the 
particular statutes of each order must be considered. In order to 
possess passive voice in the Order of Friars Preachers, one must 
he an approved confessor ; hence ordination to the priesthood is 
also required. 

\^II. The seventh condition requires a suitable age in the 
person to be elected. The age of seven years suffices to obtain a 
simple benefice, if the founder expressly so declare.^ The Council 
of Trent laid down some general rules on this point: 1° no one, 
even having first tonsure and minor orders, can obtain a benefice 
before the beginning of his fourteenth year ; 2° no one can accept 
an ecclesiastical dignity, unless he be of such an age as to re- 
ceive the required order within the lawfully prescribed time. The 
age of twenty-one complete years is required for the subdiaco- 
iiate, twenty-two for the diaconate, and twenty-four for the 
priesthood. Fotu'teen years suffices for a canonry, to which the 
care of souls is not annexed. 3° clerics of tw^enty-two years may 
be elected to cathedral dignities, not having the care of souls. 
The canon penitentiary must be forty years of age, but if no one 
in the diocese meets this requirement, the bishop may choose the 
one best qualified. This law also applies to collegiate churches. 
4° to be promoted to a dignity having the care of souls, one must 
he twenty-five years of age, unless the care of souls is committed 
to a vicar. 5° bishops must have completed thirty years, cardinal 
deacons twenty-two, cardinal priests and bishops thirty. A car- 
dinal deacon must have been a cleric in minor orders for at least 
one year, and must receive the diaconate within a year from his 
elevation. A cardinal priest must be a sub-deacon at the time of 
his elevation, and immediately be ordained priest. 

' ib. sess. 23, c. 2. 

^Barbosa in Cone. trid. sess. 23, c. 6, n. 1. 



60 CANONICAL ELECTIONS 

Religious generals, provincials and abbots must be twenty- 
five years of age. Conventual priors must have completed 
twenty-four years, unless the care of souls is exercised by secular 
priests, in which case twenty 3'ears suffice. Abbesses and pri- 
oresses should be not less than forty years. Definitors having^ 
the care of souls must be twenty-five years of age, but for elect- 
ors of generals or provincials, the age required for profession suf- 
fices. In the Order of Friars Preachers since no one acquires 
passive voice before the completion of twelve years from pro- 
fession, and since no one is professed until he has completed his 
sixteenth year, it follows that no one is eligible before completing" 
his twenty-eighth year. Some provinces have special statutes in 
this regard. 

The pope alone can dispense from the age required by the 
sacred canons. Ordinaries may dispense in virtue of apostolic 
indult, which is sometimes granted them. Other elections of 
those not having the required age are not void but voidable. Dis- 
pensations for the reception of orders are rarely granted except 
for priesthood. Bishops in virtue of indult may grant a dispensa- 
tion for six months, the Sacred Congregation of Sacraments for 
twenty months, the Holy Father for twenty-one months. 

Advanced age that renders one incapable of exercising an 
office renders one ineligible for such an office.^ Canon law fixes 
no age limit, hence this matter rests with the judgment of 
superiors. 

VIII. Excommunicated persons are ineligible to all ecclesi- 
astical benefices, for the election, postulation, presentation or 
collation of an excommunicate, even by the motu proprio of the 
Roman Pontiff, is ipso facto invalid.^ This is true even though 
both electors and elect are unconscious of the excommunication. 
The election of one unjustly though juridically excommunicated 
is also invalid, but if unjustly inflicted, the election is valid. 
Should the censure be pardoned before the confirmation, the elec- 
tion still remains invalid, for what was invalid in the beginning 
cannot be validated; in this case the confirmation would also be 
invalid. If an invalid election could be made valid, the confirma- 
tion would likew^ise be valid. When the pope confers a prelacy 
on an excommunicate, the election is valid, because it is pre- 
sumed that he previously absolved from the censure. 

Persons absolved from excommunication may with dispensa- 
tion retain their benefice or prelacy, which dispensation can be 

\ S. Thos. 2a 2ae, q. 185, art. 4. 
" Cap. Postulastis. 



CANONICAL ELECTIONS 61 

given only by him who can confer the benefice independently of 
a third party. Wherefore a bishop cannot dispense : a) when the 
collation of a benefice pertains to an inferior — unless he consent ; 
b) when the benefice was conferred by the pope ; c) when a third 
has the right of presenting a candidate. Those who knowingly 
elect or present an excommunicate to an office are by law de- 
prived of voice. Subsequent excommunication does not invalidate 
an election. 

IX. Absolute suspension from office or from a benefice ex- 
cludes promotion to ecclesiastical dignities. One suspended from 
office, though not suspended from his benefice, is ineligible to 
acquire a new benefice.^ Suspension from orders includes ineligi- 
bility to benefices requiring the use of orders, but not from simple 
benefices. Suspension from one order does not mean ineligibility 
to a benefice that does not require the use of that order.^ A per- 
son suspended from a benefice may be elected to an office which 
is not a benefice, and a person suspended from a benefice in one 
church may be elected to one in another. But absolute suspension 
from benefices renders one ineligible for election to an office. 
The election of one simpliciter suspended from a benefice or an 
office, is ipso jure void. Suspension from an office does not ren- 
der election to a new benefice void, but rather voidable.^ 

X. Persons under interdict are unqualified for the exercise 
of passive voice. Whoever violates a local or personal interdict 
becomes irregular, and therefore ineligible for benefices and prel- 
acies. But he who unconsciously and in good faith violates an 
interdict is not irregular nor ineligible for office. The election of 
one violating an interdict is ipso jure null and void.* 

XI. Another impediment that renders the reception of ec- 
clesiastical charges voidable is irregularity. We have no express 
text to this effect, but we can easily deduce it from other texts. 
For whoever is excluded from one thing is likewise barred from 
everything connected with it. But irregularity prohibits the re- 
ception and exercise of sacred orders, to which benefices are an- 
nexed. It follows therefore that irregulars are ineligible for ec- 
clesiastical offices or benefices. All benefices do not suppose 
sacred orders, still they do not admit a canonical impediment to 
the reception and administration of orders. Irregularity incurred 



^ Sanchez II, c. 2, dub. 15. 
- Passerini ib. n. 489. 
^ Suarez. disp. 28, sec. 3, n. 81. 
' Ib. n. 16. 



62 CANONICAL ELECTIONS 

without culpability after the reception of an order is not an im- 
pediment to promotion to a benefice not requiring the exercise of 
the prohibited order.^ So also irregularity impeding episcopal 
consecration is not an impediment for election to a religious 
prelacy.^ 

Although the common opinion of canonists is that the elec- 
tion of an irregular is ipso pure null and void, we prefer the con- 
trary, for there is no text expressly stating that it is ipso jure 
null. From the principle : "whoever is forbidden to exercise the 
acts of an office, is likewise forbidden to be elected to that office,'' 
we cannot deduce that such an election is ipso facto void, but 
rather that it is voidable. Nor can it be said that because the law 
prohibits the conferring of a benefice on an irregular, such a 
collation would be ipso jure null and void. This latter opinion 
is held by many authors of note, among whom are Innocent III,^ 
Sylvius,* Suarez.^ And in its favor is the fact that the pope in 
conferring benefices does not dispense from irregularity, as he 
does from censures, which proves that if irregularity rendered the 
collation of a benefice ipso facto null, he would dispense from it.^ 

Hence it follows that an irregular is not bound in conscience 
to lay aside a benefice, and to retain it validly he needs only to 
obtain a dispensation from the irregularity, which dispensation 
he must in conscience seek as soon as possible. If the matter is 
brought to the external forum, he should be deprived of his bene- 
fice. In freely accepting a benefice, an irregular sins, being dis- 
obedient to the sacred canons in a serious matter.'^ 

Irregulars may be elected discreets, electors of a general or 
provincial, socii or definitors to general and provincial chapters, 
for these offices require jurisdiction in the external forum only, 
and do not flow from the power of orders, nor are they ordained 
to it. Irregularity does not impede the power of jurisdiction, nor 
its use. In a certain sense these offices could be called benefices^ 
still they do not per se or from their nature suppose orders, nor 
are they ordained to them, as are simple benefices, which are 
previous dispositions to orders.* 

^ Passerini ib. n. 507. 

' Suarez. IV de Relig. t. 8, 1. 2, c. 4, n. 25. 

^ Cap. 6 de praeb. 

* Excommunicato 4, n. 4. 

" ib. sec. 2, n. 35. 

^Passerini ib. n. 517. 

Mb. 

^ Sigismund ib. dub. 67, n. 3; Passerini ib. n. 520. 



CANONICAL ELECTIONS 63 

XIL Since honesty of morals is required for promotion to 
benefices and prelacies, the brand of infamy renders a person 
ineligible to these offices.^ 

Infamy of fact, which is based on the rational and probable 
conjectures of a number of reliable persons, impedes the worthy 
acquisition of ecclesiastical charges, but does not render canonical 
elections or collations null and void. For iniquitous persons are 
not even by natural law incapable of jurisdiction, power or do- 
minion ; on the contrary Christ Himself said of the wicked Phari- 
sees : "The Scribes and Pharisees have sitten on the chair of 
Moses. All things therefore whatsoever they shall say to you, 
observe and do; but according to their works do ye not."^ In 
such elections all parties concerned sin grievously, but the elec- 
tion, confirmation, or collation is not by reason of the infamy in- 
valid, except when the pain of nullity is ipso jure imposed by a 
particular statute. No one properly sneaking can dispense from 
infamy of fact ; it is removed only by penance. Bishops and 
religious prelates can declare whether it is infamy or rumor, 
whether it is still present or has been wiped out by penance.^ 

Infamy of law, which by a decree of law brands a person as 
infamous, deprives one of legal repute, that is, of one's right to 
good repute. This is the primary effect, and from this proceeds 
a secondary effect, which is ineligibility to legitimate acts. De- 
spite many opinions to the contrary, it seems certain that the 
moment a crime is committed, infamy of law takes away the 
right to, but not the possession of, one's good name ; and it seems 
too that the declaratory sentence of the crime is to be referred 
to the moment when the crime was committed, so that from that 
time, elections, collations, or acquisitions of benefices, and even 
all legitimate acts are invalid. Exception is made for occult in- 
famy and for acts of public office and jurisdiction, which are sus- 
tained by title of public office in favor of the common good. Al- 
though one who has incurred infamy of law ferendae sententiae 
should not be elected, the election is not ipso jure null, and if 
confirmed before a declaration has been pronounced, the con- 
firmation is lawful — though the delinquent can afterwards be 
punished according to the gravit}^ of the crime, even with priva- 
tion of the dignity. If the infamy is latae sententiae, the election 
is ipso jure null, but until juridically pronounced it is tolerated 
by the Church, and the confirmation prevails under title of public 

^ Cone. Trid. sess. 24, c. 12. 

'Matt, xxiii-23. 

^ Suarez, ib. 4, sect. 1, n. 11; Sylvester v, infamia n. 7. 



64 CANONICAL ELECTIONS 

office, but by a subsequent declaration of the crime, the election, 
confirmation, and all acts not pertaining to public office become 
void. Infamy has no effect in the elections of the Order of Friars 
Preachers until a juridical sentence has been given/ 

XIII. Privation of passive voice, juridically pronounced, is 
also an impediment to canonical promotions. A superior cannot 
deprive any one of passive voice from extrajudicial knowledge, 
but he may refuse to confirm one whom he thinks unfit for an 
office. It is only per accidens that electors are bound in con- 
science not to elect a person not judicially deprived of voice, for 
example, if he is impenitent and manifestly unqualified, or by 
reason of scandal, or to avoid contentions and injury to the com- 
mon good. The person himself, even though ipso jure but not 
juridically deprived of voice, is not bound in conscience to refuse 
his consent to an election, for no law obliges one to the execution 
of grave penalties before he has been sentenced to them. Ex- 
ception is made for cases in which charity would bind him to 
refuse his consent.^ 

XIV. A person, w^hose election was at any time vetoed ow- 
ing to a personal impediment, is ineligible. If the election was 
cassed by reason of a defect either in the form or in the electors, 
the candidate may be reelected in the same church or in another. 
One rejected from election by reason of a personal impediment 
contracts infamy of fact. It does not follow, however, that if a 
person be rejected from one election, he thereby remains univer- 
sally rejected from all future elections, for rejection may arise 
from any one of three reasons : from a convicted crime, from a 
presumed crime, or from defect of age, infirmity and the like. 
The first two impediments are wiped out by penance, the third 
by cessation of the impediment.^ In the Order of Friars Preach- 
ers where superiors are not accustomed to state their reasons for 
cassing an election, the electors should not elect one previously 
rejected in some other election, unless they are sure that the re- 
jection was occasioned by a defect in the form. 

XV. If there are persons in a diocese or province qualified 
for an office, outsiders should not be elected. But the election of 
an outsider is valid unless a special law or custom render it other- 
wise, and should be confirmed if there be no other impediment.* 
General chapters can abrogate contrary customs not approved by 

^ Passerini n. 595. 

' ib. n. 606. 

^ cap. Super eo 12 de elect. 

*Cap. Cum inter 21. 



CANONICAL ELECTIONS 65 

apostolic authority.^ In the Order of Friars Preachers, brothers 
of one convent may be elected prior of another, and brothers of 
one province may be elected prior or provincial in another prov- 
ince, provided they meet the other required conditions.^ 

Since the free disposition of benefices belongs to the pope, 
he may confer them on whom he will ; other superiors must fol- 
low special laws and customs. But should there be no one in a 
diocese or province qualified for an office, the superior — notwith- 
standing special laws and customs to the contrary — should select 
an outsider, for the necessity of choosing the one best fitted for 
an office is based on natural and divine law, against which positive 
law or custom has no force.^ 

XVI. The candidate must not be already assigned to an- 
other office or benefice. We shall consider this condition later 
when speaking of postulation. 

XVII. No person can lawfully or validly elect himself.* 
Neither can any one present himself to a benefice. A father may 
present his son and where there are several patrons, one may 
present another. If a bishop confer a benefice on a patron, he 
may accept it ; he may even request the bishop to confer it, for 
he does not thereby present himself. 

There is only one instance in which a candidate may elect 
himself, namely by consenting to the election of himself by 
others, thus increasing the number of votes so as to constitute 
a majority.^ But this does not hold where the form of the chapter 
"Quia propter," or secret ballot must be observed, according to 
which a candidate may not know he has been choosen by the 
others before the publication of the scrutiny, and a vote given 
outside the scrutiny is invalid. Hence this exception holds only 
where election is by public vote, or where an accessus is ad- 
mitted after the publication of the scrutiny. 

In addition to the above conditions for eligibility, the Con- 
stitutions of the Friars Preachers further require : 1° that a per- 
son does not dwell outside the Order, even with the permission 
of superiors, as explained above in the chapter on active voice. 
Such a person cannot be elected until one continuous year after 
his return,^ and if he remained outside without the permission of 

^ Passerini ib. n. 656. 

^ Avignon, 1442. 

^ Passerini ib. n. 660. 

*cap. In scripturis 8, q. 1. 

■' Cap. Cum in jure 33, de elect. 

'Rome, 1580. 



66 -CANONICAL ELECTIONS 

superiors, he remains ineligible for ten years, except by written 
peri^iission of the master general. Apostates cannot be elected 
to any office before twenty years from their return ; 2° that he 
h^s not refused the office of novice-master, and that he be not 
novice-master at the time of his election, unless with permission 
of the provincial ; 3° that he does not immediately succeed a 
brother-german ; 4-'^ that he be not visitor general or his com- 
panion, or vicar of the election sent from another convent in case 
of necessity; 5° that he has never been prior in the convent of 
election, or that six years have elapsed since that time ; 6° that 
in an episcopal city and in a House of Studies he be a lector in 
theology. In the first case the provincial may grant a dispensa- 
tion, in the second the general. 



CHAPTER VI 
The Act of Election 

When an election becomes necessary, the president must 
summon the electoral body to some specified place, and for a cer- 
tain day within the legal time-limit. The place does not enter 
into the substance of election, still it should be held in a suitable 
place. Episcopal elections must take place within the church or 
its limits, unless there be a sufficient reason for holding it else- 
where.^ Papal elections held outside the conclave are invalid.^ 
If the majority of electors, for reasons of personal convenience, 
select a place outside the church limits, the minority are not 
bound to accede, but may appeal. If on the contrary, the cus- 
tomary place is not safe, the minority, nay even one, may com- 
pel the majority to choose a safe place.^ It belongs to the presi- 
dent to determine just what place within the limits the election 
will be held. Should the electors conduct an election in an un- 
suitable place, as in the home of a secular power, they sin mor- 
tally, or at least venially, according to the degree of its unfitness. 
The election itself is not ipso facto null, but it should be annulled, 
for what is contrary to law should not obtain force. Clandestine 
elections — those not held publicly and collegiately, — are repro- 
bated by law, and are null and void.* They are not ipse jure null, 
but reprobated in this sense, that the clandestinity must be 
remedied before they can be confirmed. Previous to an election 
in the Order of Friars Preachers, the superior asks if the place 
and time appointed by him be agreeable to all, and the majority 
disapproving, the election does not proceed. 

The time appointed for holding an election presupposes the 
vacancy of the office or benefice in consequence of death, trans- 
fer, resignation or deposition. A prelate cannot be deposed un- 
less by the declaration of a superior, and if he appeals, the sen- 
tence must be suspended. Consent to transferral or resignation 
does not render an office vacant until it has been accepted by a 
superior. Citation of vocals made before the prelacy is vacant 

* cap. Quod sicut 28. de elect. 
' Greg. XV. "Aeterni Patris." 
^cap. Bonae 23, n. 1. 
*cap. Quia propter. 



68 CANONICAL ELECTIONS 

is null, and does not revive on the death or removal of a prelate. 
Elections cannot be held prior to the funeral obsequies of a de- 
ceased prelate, unless there be a reasonable cause, but whether 
an election thus held should be annulled is greatly disputed. Reg- 
ulars by privilege are not held to this last solemnity.^ 

The time fixed by law for the election does not begin from 
the vacancy of the office, but from the time of its becoming 
known — the determination of which time, rests with the judg- 
ment of the superior. Superiors are not held to notify the elect- 
ors juridically of a prelate's death, for they are supposed to learn 
of it by ordinary means, but if the office becomes vacant in any 
other way, juridical notification must be given.^ 

The time-limit differs for different churches and orders, 
hence each should observe its own statutes and cilstoms. Com- 
mon law allows three months for the election of a bishop,^ and 
if not held within this time it devolves on the superior. Other 
benefices should be provided for within six months. If the chap- 
ter does not elect a bishop within three months, or if a bishop 
does not provide for vacant benefices within six months provi- 
sion in both these cases devolves to the metropolitan. 

Religious orders, for the most part, follow their own particu- 
lar statutes in this regard. In the Order of Friars Preachers 
elections of conventual priors must take place within one month 
from the knowledge of the vacancy, otherwise they devolve to 
the provincial \Yho must appoint a prior within three months. 
A period of one year is given for a provincial election. If the 
electors do not elect or postulate a provincial within this time, 
and on the very day for which the electors are cited, the election 
ipso facto devolves to the master general. If a provincial dies 
or is removed in the first year of his office, and before Septua- 
gesima, the vicar of the province must summon the vocals within 
the coming Septuagesima, to a chapter to be held after Easter; 
if he dies or is removed after Septuagesima, this convocation 
must be made in the following Septuagesima. If he should die 
or be removed in the last year of office, the vicar completes the 
term."* In many provinces the day assigned for the election of 
a new provincial is the Saturday before the second Sunday after 
the Octave of Easter.^ The election of a master general should 

^ Lezana — Praedicatorum 7, n. 17. 
^Passerini, c. 13, n. 7. 
^cap. Ne pro defectu. 
* Rome, 1841. 
' Const, n. 838. 



CAXONICAL ELECTIONS 69 

be held on the vigil of Pentecost. If a general dies or is removed 
after Pentecost, but before or on the feast of Saint Michael, a 
new general must be elected the following Pentecost ; but if he 
dies after the feast of Saint Michael but before Pentecost, the 
election will not take place until the Pentecost of the following 
year — unless other dispositions are made by the authority of the 
Holy See, or unless the general dies in the twelfth year of office.^ 
The general himself before completing his term gives due notifi- 
cation to the vocals of an approaching election, except in case 
of his death, when the vicar of the order issues the citation.^ 
The election of a general devolves to the Holy See if not held on 
the day fixed by law, unless grave necessity renders this impos- 
sible. Definitors are elected any time during the provincial chap- 
ter. A socius of a prior to a provincial chapter may be elected 
any time between Septuagesima and the approach of the chapter 
on a day assigned by the sub-prior. 

Elections may be held on feast days, for they are extraju- 
dicial acts. For a reasonable cause they may be celebrated at 
night, there being no law to the contrary. Special law and cus- 
toms requiring elections to be held during the day must be 
respected. 

On the appointed day the superior or president opens the 
electoral assembly. Previous to the election of a bishop prayers 
and supplications are offered.^ These exercises usually consist 
of a Mass of the Holy Ghost, reception of Holy Communion by 
all the electors and an invocation of the Holy Ghost by the anti- 
phon "Veni Sancte Spiritus" or by the hymn "Veni Creator." In 
the Order of Friars Preachers a Mass of the Holy Ghost is 
offered before the elections of generals and provincials, and in 
every election an invocation to the Holy Ghost is made by the 
antiphon "Veni Sancte Spiritus" and the hymn "Veni Creator." 
A Mass of the Holy Ghost also usually precedes the election of 
a conventual prior. If an election should be cassed or if a person 
elected should refuse his consent, the Mass of the Holy Ghost is 
not repeated before the subsequent scrutiny. 

Mass of the Holy Ghost and reception of Holy Communion 
do not belong to the substance of election — for there is no law 
nullifying elections not preceded by these exercises — unless 
special statutes prescribe them under pain of nullity. Neverthe- 
less, to omit them is a grave or slight sin in proportion to the 

' lb. n. 753. 

^Ib. 

^ Cone. Trid. sess. 24, c. 1 de ref. 



70 CANONICAL ELECTIONS 

scandal occasioned thereby. In the Order of Friars Preachers 
electors of provincials, conventual priors, or prioresses are 
obliged to communicate on the day of election under pain of pri- 
vation of voice ipso facto incurred/ Elections not preceded by 
an invocation of the Holy Ghost and reception of Holy Commun- 
ion by the electors are to be annulled if opposition is made.^ 

The spiritual exercises over, the assembly proceeds, if neces- 
sary, to verify the credentials of the electors. It is the office of 
the judge appointed by the statutes or customs of different col- 
leges to decide whether the vocals are here and now qualified to 
vote. In admitting and excluding them the judge must proceed 
according to law and not from fact alone. No one can be de- 
prived of his right to vote unless it is juridically evident that he 
does not possess the right. The judge cannot pass judgment on 
credentials coming from a higher authority, hence he cannot 
examine apostolic letters or pronounce sentence on their validity 
unless deputed by the popie to do so. Opposition, however, can be 
made to them until they are justified before the one commissioned 
to examine them, — the burden of proof resting with the oppos- 
ing party.^ The same is to be said proportionately of the letters 
of other superiors, which should be respectfully received. If they 
are given with condition of justification, the vocal must justify 
them before he can be admitted to vote. When, however, he pos- 
sesses the right to vote by virtue of his letters, he is presumed 
to have justified them.* Hence, one in possession cannot be 
ejected unless his opponent furnishes clear proof that he has not 
justified his credentials. If the letters are given absolutely, the 
vocal is freed from the burden of proving them, and the chapter 
cannot impede their execution, unless their falsity is evident. 

In the Order of Friars Preachers before the electors proceed 
to the election of definitors or to the celebration of a provincial 
chapter, certain ones are appointed by the provincial or vicar with 
the provincial council to examine the testimonial letters of those 
coming to the chapter, but no power is given them to exclude 
any one from active voice.^ These examiners are called judges 
of voice (judices vocem). Their authority extends only to the 
examination of the letters which socii and priors are required by 
law to bring to the chapter. The power of excluding those not 
approved by these judges, rests with the president of the elec- 

^ Samuel, Tract 1, disp. 2, n. 6. 

^Donatus III, Tract 1, q. 18, n. 11. 

^Passerini, c. 14, n. 60. 

* Rota, decis. 154, n. 2. coram Eminentissimo Ottobono. 

"Rome, 1650. 



CANONICAL ELECTIONS 71 

tion, who has full jurisdiction in this regard.^ Neither have the 
judges absolute authority in respect to the testimonial letters, 
for the judgment of the more serious difficulties belongs to the 
president and provincial council.^ They can deprive no one of 
voice on account of any fault, nor declare any one deprived except 
priors and socii for one of the three following reasons : because 
they did not bring the prescribed testimonial letters ; because 
the letters were false ; or because they were not sufficient to 
meet the requirements of the law.^ In provincial chapters they 
can examine the title of the socius, and in general chapters those 
of the definitors and electors.* All other matters concerning the 
vocals pertain to the provincial and provincial council. The pro- 
vincial or vicar can also examine the testimonial letters of the 
priors and socii. Once the electoral body has been assembled, 
messengers may not be dispatched to inquire whether the vocals 
lawfully possess voice, but the election must proceed, and the 
doubts — if there be any — are sent to the confirming prelate.^ 

Then follows a discussion of the matters pertaining to the 
election. This discussion is not essential to the election, except 
where special statutes so prescribe. The voice of the electors, if 
not already attended to, is now legalized. Then deliberations are 
lield concerning the time and place of election — in the Order of 
Friars Preachers the president asks the vocals if the time and 
place appointed are agreeable to them. Next there takes place 
a frank and free discussion of the merits of the candidates. The 
latter need not have previously made known their candidacy, 
though they may do so.^ The electors are free to propose and 
sustain the candidates of their choice. If any one wishes to pro- 
test against the election, the active voice of the vocals or the 
passive voice of the candidates, his protestation or opposition is 
now considered, as well as the replies to the same. The presi- 
dent also makes a protestation that he does not intend to admit 
unqualified, or to exclude qualified vocals from the election. This 
having taken place, the president ad cautelam, then gives general 
absolution from all censures. 

These preliminaries over, three members of the assembly 
worthy of trust are selected to examine secretly and separately 

*Passerini, lb., n. 67. 
* Sylvester — Judex, n. 1. 
'Passerini, lb., n. 7Z. 
*Ib., n. 70. 

'Fontana, De Elect, n. 3. 
' Boudinhon, Cath. Ency. 



72 CANONICAL ELECTIONS 

the votes of all. These are called scrutineers, because they scru- 
tinize the votes of the others. They are chosen by the majority 
of the vocals, but custom can prescribe otherwise. In the Order 
of Friars Preachers the Constitutions provide for their institu- 
tion ; in the election of a prior or socius they are the sub-prior 
and vicar or the two oldest vocals.^ The same holds for the elec- 
tion of a provincial elector. In the election of definitors of a 
general or provincial chapter they are the provincial or vicar of 
the province together with the prior and sub-prior of the convent 
in which the election is held, or at least two of these three ; if 
the prior and sub-prior cannot be present, then the two oldest 
electors act as scrutineers. In the election of a provincial these 
officials are the three oldest priors, in that of a general the three 
oldest provincials. 

The scrutineers are not to be elected according to the form 
of the chapter "Quia propter," but by public suffrage when they 
are not appointed by the superiors. In the Order of Friars 
Preachers, if the sub-prior has no voice or if one of those ap- 
pointed, even though present, is impeded, a fourth is elected by 
public vote,^ except in the province of Poland, where he is elected 
secretly by decree of the general made at the request of the pro- 
vincial. If the one impeded is not present, then the three oldest 
present are chosen, this is also true when one of the oldest does 
not wish to act. Where there are but three vocals, two scru- 
tineers suffice ; where there are but two, one suffices ; where 
there is but one, none are required. In all other cases there must 
be three. Although the form of election requires that there be 
no more than three, still the election of a fourth, fifth, or sixth 
though useless, does not vitiate an election. A general chapter 
may prescribed, unless expressly forbidden, that a fourth be 
elected, for the Lateran Council^ forbade that a fourth be chosen 
by the electors but not by superiors having the right to make 
laws. 

The Council of Trent decreed that in the election of all "su- 
periors, temporal abbots and other officials, generals, abbesses, 
prioresses and other superioresses," all should be elected by 
secret vote and the names of the electors never published, and 
that all elections otherwise conducted are invalid.* This decree 
does not include the electors of bishops and perpetual abbots. 

^ Const, n. 553. 
=^Rome, 1629. 
^cap. Quia propter. 
*sess. 25 de Regul. c. VI. 



CANONICAL ELECTIONS 7Z 

The practice now is that generals, provincials and local prelates 
are elected according to the Tridentine form, but other officials 
are sometimes elected by public suffrage. In the Order of Friars 
Preachers, generals, provincials, priors, definitors of general and 
provincial chapters, the socius of a prior to a provincial chapter 
and electors of provincials and generals are elected by secret 
ballot, other elections are either by public or secret vote — not 
however, by ballot, but with black and white beans. 

A much disputed question here arises whether the Tridentine 
decree admits of auricular scrutiny or whether the scrutiny be 
necessarily by ballot. Some hold that the decree absolutely for- 
bids auricular scrutiny, and that elections not conducted by bal- 
lot are invalid.^ They base their opinion on a statement made 
viva voce to Cardinal Cribello by Pius V (May 12, 1562), in which 
he declared that the mind of the Council prescribed secret vote 
by ballot. 

But the majority of authors hold the contrary opinion,^ 
which seems to be more probable. For it is generally admitted 
that the discipline of the Lateran Council was not abolished by 
that of the Council of Trent. But the former council merely 
called for the appointment of three trustworthy scrutineers, who 
should collect secretly and in quick succession the votes of all 
the electors.^ The Sacred Congregation of the Council also con- 
sidered an election secret when three or four receive the votes 
of the others.* The only extension the Council of Trent made to 
the discipline of the former council is that the votes given 
secretly in the scrutiny should never be published. But this de- 
cision is not in the least repugnant to auricular scrutiny, for it 
is one thing for the scrutineers to know the votes of the electors, 
which the council does not forbid, and quite another thing to 
publish them, which the council does forbid. To say that the 
votes are published when known to the scrutineers is contrary 
to the councils themselves, and also to the declarations of the 
Sacred Congregation of the Council. Furthermore, the cited dec- 
laration of Pius V is not sufficient for a contrary opinion, for 
€ven granted that it be authentic, all viva voce declarations were 
recalled by Gregory XV and Urban VIII. Another proof for our 
opinion is that the Council of Trent declared that elections of 
abbesses made by auricular vote to a bishop or superior listening 

^Miranda II, q. 23, a. 15; Castell., lb,, c. 4. n. 62; Donatus III, tract. 
1, q. 6. n. 7. 

^ Sigismund, Suarez, Garzias, Barbosa, Lavorius, Sc. Cone. 

' cap. Quia propter. 

* Suarez IV, t. 8, 1. 2. n, 10. 



74 CANONICAL ELECTIONS 

at a small window were valid. ^ And since the Tridentine decree 
includes the election of abbesses, we cannot say that other elec- 
tions by auricular vote are invalid. 

The publication of votes in the election itself destroys its 
secrecy and makes it null and void. This publication would hap- 
pen : 1° — if the election was conducted without scrutineers ; 2° — 
if the vocals should make their choice known to the scrutineers 
in a voice so loud as to be heard by the other capitulars ; 3° — if 
the scrutineers were not members of the chapter ; 4° — if when 
announcing the result they should make known the names of the 
electors; 5° — if the electors' names were made known in the let- 
ters of confirmation — for election continues until it has been con- 
firmed. The election is also invalid if the vote of but one elector 
is made public in the election, even with the permission of the 
major part. If, however, the majority object to this publicity, 
the election is valid, but the vote publicly given is invalid. But if 
the one thus publicly voting repent of his misdeed, he may be 
permitted to take part in the same election, provided he does not 
vote for the same candidate.- Such elections are invalid even 
though the vocal himself or the chapter be unaware of the defect. 

Elections by ballot are invalid if any mark on a ballot or any 
circumstance connected with it, will acquaint one or more of the 
scrutineers with the name of the voter. In auricular elections 
scrutineers may know the names of electors, but in elections by 
ballot this knowledge is forbidden. The election is not invalid 
when one or more cast marked ballots unknown to and without 
the consent of the chapter. But if the chapter, aware of the fact, 
withhold its consent, the election is neither void nor voidable, 
though the unlawful votes must not be computed with the others. 
For where the majority elects rightly, and the minority sins — 
even in the form, this is not prejudicial to the election, unless 
especially decreed — as in the case where simony enters into an 
election.^ 

In the Order of Friars Preachers elections must be by secret 
ballots received in a receptacle by the scrutineers, who count, 
read, and burn them.* Ballots having any distinguishing mark 
are forbidden under pain of privation of active and passive voice, 
but if these votes are in the minority and were cast contrary to 



' lb. c. 7. 

^Passerini, lb., c. 17, n. 14. 

'lb. n. 21. 

* Bologna, 1564. 



CANONICAL ELECTIONS 75 

the knowledge and wishes of the majority, the elections are 
neither void nor voidable, but the votes must be rejected.^ 

It is directly opposed to the substance of election for one 
elector to cast a vote, either orally or in writing, for another, 
unless it is manifest he was deputed to do so as procurator. 
Election, therefore, in its substance ought to proceed by votes 
secretly given by the vocals and secretly received by the scru- 
tineers — and among religious, never published even after the 
election. Manifestation of the voters' names, however, made 
outside the election, provided it is not made by the scrutineers, 
is not forbidden either by the Lateran or Tridentine Councils. 
Absolutely speaking and making exception for particular stat- 
utes, it does not pertain to the substance of election to burn the 
ballots. In the Order of Friars Preachers they must be burned 
in the presence of the chapter before the result of the scrutiny 
has been announced, but even if burned after this announcement 
has been made, the election is valid. They are also burned in 
papal elections. 

Some canonists question the validity of elections in which 
there are but two or three vocals. The common opinion is that 
such elections are valid, if not forbidden by particular statutes. 
For these elections are secret if the scrutineers receive the votes 
of each, or if the ballots are secretly cast ; it is only accidental 
that, owing to the fewness of electors, their names are conse- 
quently manifested. In the Order of Friars Preachers no one 
from the electoral body present, or absent through his own fault, 
can be elected if there are less than five vocals, for to elect one 
of the chapter a majority of one and a half is required, which can- 
not be had when less than five are present. 

Common law does not forbid voting by proxy, provided the 
mandate is not given for a definite person or persons, because in 
this case the election could not be secret, for it would always be 
certain that the procurator did not elect nor could not have 
elected one other than the person or persons named.^ An absent 
vocal may, however, insinuate by word to the procurator the one 
for whom he wishes him to vote, and the procurator is bound in 
conscience to vote for the one thus named, but if he votes for 
another he acts validly. In this case the procurator could vote 
for two candidates, casting one vote for the candidate named by 
him whose procurator he is, and another for the candidate of 
his own choice.^ 



' Barcelona, 1574. 

^ Garzias V, c. 4, n. 199. 

- lb., n. 103. 



76 CANONICAL ELECTIONS 

Before the scrutineers begin the scrutiny they should take an 
oath that they will faithfully discharge their duties. But this 
oath is not essential, and in many instances is omitted. The 
place of scrutiny must be public and in sight of the whole chapter, 
but at such a distance from the electors that neither the electors 
talking to the scrutineers, nor the latter talking among them- 
selves can be heard. In the Order of Friars Preachers an elector 
when casting his ballot may not put his hand into the urn, but the 
casting of the ballot must be plainly seen by the scrutineers.^ 

Recourse to lots in places not bound by the discipline of the 
chapter "Quia propter" does not render an election void, but 
rather voidable, and may be introduced by custom.- In other 
places elections so conducted are ipso jure invalid. Arbitrators 
may be elected through lots.^ 

It matters not by what words the formula is expressed, pro- 
vided the elector expresses his consent de praesenti for a certain 
person. Three different formulas are given by authors : I elect 
N ; I consent in N ; I name N. All formulas implying indetermi- 
nation or condition are worthless. Useless votes must be re- 
jected, for example, a ballot naming the pope for the office of 
prior. 

In auricular scrutiny the electors may make a new choice 
before the scrutiny has been committed to writing, and even 
when it has been committed to writing they may still recall their 
vote if the result has not been announced, provided that at least 
two of the scrutineers have a distinct recollection of their former 
choice. No retraction can be made once the result has been pub- 
lished.* In scrutiny by ballot only the one to cast his vote first 
may recall it, and that only when his vote alone is in the urn, 
for after a second vote has been cast revocation is forbidden. 
With the consent of the chapter all the votes may be burned at 
the instance of one vocal, and a new scrutiny taken. Further- 
more, if prior to the announcement of the scrutiny the majority 
wish to have the ballots burned, this may be done and a new 
ballot taken. After the publication, no change is permitted, ex- 
cept when it is certain the election is null, in which case revoca- 
tion is lawful provided it take place before the election is an- 
nounced in the name of the college.^ 



^ Const, n. 557. 

^ Passerini, lb., c. 28, n. 6. 

^Thesaurus II, v. elect, c. 2. 

* Sigismund, lb. dub. 29, n. 4; Sylvius, lb. II, n. 7. 

° cap. Cum terra 14, de elect, n. 4. 



CANONICAL ELECTIONS 77 

Every elector physically or morally present must vote, for 
the omission of one such vote is contrary to the substance of 
election.^ A fourth scrutineer should not be appointed to receive 
the votes of the other three, but the latter must attend to the 
votes of one another. In the Order of Friars Preachers the 
scrutineers vote first, which prescription would be useful in all 
canonical elections. 

Although the electors are in duty bound to vote for him 
whom they deem the most worthy among those qualified for the 
office in question, still they are not absolutely bound to take an 
oath to this effect. Clement VIII and Urban VIII prescribed an 
oath for religious electors, but the decree was not universally 
received. In the Order of Friars Preachers electors do not take 
an oath. When an absent religious elects by proxy, it is the 
procurator who takes the oath, but to do so he needs a special 
mandate. Outside of religious institutes either the absentee or 
the procurator having a special mandate takes the oath. 

After the ballots have been cast they are counted, and their 
number compared with the number of voters. If they do not 
agree the ballots are burned and a new scrutiny taken. It is 
essential that the votes of the electors be committed to writing.^ 
It suffices for one scrutineer to write the votes, but in order 
to avoid mistakes, it is better that all of them take a note of the 
count. Should there be a disagreement of count in scrutiny by 
ballot, the votes should be read a second time and the true num- 
ber ascertained, but in auricular scrutiny, the written count of 
two obtains, but if all three disagree the scrutiny must be re- 
peated. Written accounts of the scrutiny are not essential to 
all elections.^ 

The discipline of the chapter **Quia propter" must always 
be observed except in cases where its observance is impossible.* 
Hence, when there are less than four vocals the form prescribed 
cannot be observed, — for the scrutineers and the vocals not be- 
ing distinct — the election cannot be known to the former with- 
out necessarily being made known to the latter. Where there 
is but one elector no scrutiny is required, for in one and the same 
act he ma}^ nominate, elect and publish the election, and it will 
suffice if in the presence of witnesses or letters before witnesses 
and notary, he says : In place of the college I elect N.^ Where 

* Passerini, lb., n. 42. 

" cap. Quia propter. 

' Rota, decis. 289, n. 30, par. 6. 

*Innoc. lb., n. 6; Donatus, tract. 1, q. 17, n. 7. 

"Panormitanus, lb., c. 2. 



78 CANONICAL ELECTIONS 

a member of the electoral body must be chosen, and that body 
be reduced to one, there can be no election, for a vocal is forbid- 
den to elect himself; but in this case he is considered elected by 
law, and the only thing required is the confirmation of the elec- 
tion thus made,^ or that the confirming prelate appoint him to the 
office in question.- When an election devolves to a superior he 
should choose one having the qualities required by the college. 
Hence, when the candidate should be selected from the college, 
and the college be reduced to one, that one should be chosen. 
When ineligibles may be reinstated by a superior, then the one 
remaining vocal is not ipso jure elected, nor is the superior bound 
to select him, but may if he so desire, rehabilitate the former to 
passive voice and the qualified vocal may elect one of the num- 
ber, or the superior could rehabilitate them to both active and 
passive voice, and then recourse must be had to the customary 
election.^ 

When the electoral assembly consists of but two members, 
these two are not held to the law of scrutiny, but may elect pub- 
licly without having recourse to scrutiny, which would be super- 
fluous and useless. If a member of the college must be chosen, 
then one should renounce his vote and, if elected by the other, 
the election is valid unless prohibited by special statute.* In the 
latter case the election devolves to the superior who is bound 
to choose one of the two. When there are three electors they 
are not bound to observe the discipline of the chapter *'Quia prop- 
ter," except to elect by ballot when prescribed by special law, and 
not to publish the names of the electors outside of the college.^ 

We have said above that after all the votes had been cast 
they are counted, and this is true even when all are given for the 
same person, since it is absolutely essential that the number of 
votes tally with the number of electors. In former times, the 
candidate who had obtained the votes of the more numerous and 
sounder part (major et sanior pars) of the college, was declared 
elected. Although it was presumed that the more numerous part 
was the sounder part also, still contrary proof was admitted, and 
this appreciation, necessitating a comparison not only of the num- 
ber of votes but also of the merits and zeal of the electors, led 
to endless discussions and dissensions. But the subsequent use 



'Cuth. IV, de elect, n. 3. 
^ Sigismund, lb., dub23, n. 8. 
'Passerini, lb., n. 70. 
* Sigrismund, lb., d. 23, n. 5. 
^Passerini, lb., n. 75. 



CANONICAL ELECTIONS 79 

of the secret and written ballot proved an efficient remedy to 
these difficulties by assuring the election to the candidate who 
obtains an absolute majority o/( two-thirds. When the electors 
are odd in number a gain of one vote constitutes a majority ; if 
the number be even, a gain of two votes is required/ In the 
Order of Friars Preachers if the candidate is a member of the 
chapter and present therein, or if absent through his own fault, 
he must receive a gain of two votes to ensure the majority, but 
if legitimately impeded from being present, an absolute majority 
is sufficient, just as in the election of an outsider.- Vocals absent 
through their own fault, or those who renounce their vote, are 
not to be computed in the number of electors, but contemned 
vocals must be numbered in calculating the majority. Alterna- 
tive, uncertain, useless and blank votes are not to be taken into 
account, for whoever casts such votes is considered to have for- 
feited his right for that ballot.^ When two or more candidates 
receive the same number of votes, the choice of candidates is 
made by him to whom the chapter, law or custom commits this 
office. Sometimes the confirming prelate may choose the one 
he thinks best fitted for the office in question. Should no candi- 
date obtain an absolute majority, another scrutiny is held, and 
so on until a decisive vote is reached. However, special statutes 
can prescribe, and in some cases have prescribed various rem- 
edies for useless balloting, for example, that after three rounds 
of fruitless balloting the election shall devolve upon the superior ; 
or that in the third round the electors can vote only between the 
two most favored candidates ; or that in the fourth round a rel- 
ative majority shall suffice, — as in congregations of nuns under 
simple vows.* 

When the final vote has been counted and committed to 
writing, the result should be officially announced to the electoral 
l3ody by the presiding officer or by one deputed thereto.^ This 
act is also essential. The time within which it should take place 
is left to the judgment of the superior, provided there be no defi- 
nite time prescribed by special statute. The vocals are not 
obliged to remain in the chapter while the votes are being read. 
Outsiders may be present when the announcement is made. The 
iirst scrutineer or the one appointed by custom or statute, then 

' Boudinhon, lb., 

'Avila, 1895. 

^^ Sigismund, lb., d. 9, n. 11. 

* Boudinhon, lb. 

^cap. Quia propter. 



80 CANONICAL ELECTIONS 

announces accurately how many votes were cast for each can- 
didate, and this done, he then in a clear voice in his own and in 
the name of the chapter, formally elects the candidate who ob- 
tained the required majority of votes. 

The decree of election is next drawn up, and dispatched to 
the confirming prelate. This decree is a written document con- 
taining a complete account of the electional proceedings. It is 
commonly held that it does not enter into the substance of elec- 
tion. Castellini says he know^s of many instances when the pro- 
cess of elections in the Order of Friars Preachers was announced 
orally to the superior by one or more of the scrutineers.^ Com- 
mon law requires that "instructors" accompany the decree in 
order to explain its details, but the majority of authors hold that 
this applies only to elections which are to be confirmed by the 
Apostolic See. The decree is ordinarily, but not necessarily, 
signed by all the electors. In the Order of Friars Preachers the 
scrutineers in presence of the whole chapter sign and seal the 
document, which is then sent as soon as possible to the superior 
by a messenger. No vocal is permitted to convey the document, 
under pain of privation of active and passive voice, and of the 
punishment imposed on those journeying without permission.^ 

Before passing to the next chapter we must say a few words 
about those two exceptional modes of election, namely compro- 
mise and quasi-inspiration. 

Compromise occurs when all the electors confide the election 
to one or several ecclesiastics, either members of the chapter or 
strangers, and ratify in advance the choice made by the arbitra- 
tor or arbitrators. This method was excluded from the elections 
of regulars by the Council of Trent.^ It is not necessary that 
the chapter appoint the arbitrators but it may commission others 
to do so.* If each one is given absolute power of electing, they 
are presumed to have been elected in solidum.^ The compromise 
is conditional or absolute according as the arbitrators are or 
are not restricted. For the latter the unanimous consent of the 
chapter is required, for the former that of the majority suffices.^ 

All the conditions for election in general must be complied 
with in election by compromise, for what is necessary to the 

' c. 12, n. 25-30. 
^Valencia, 1647. 
^ sess. 25, de Regul. c. 6. 

* Miranda, II, q. 33, a.34. 
^ Jo. Cald. Coiif. 6. 

* Passerini, lb., c. 22, n. 20. 



CANONICAL ELECTIONS 81 

genus is necessary to the species. Arbitrators cannot be elected 
except by those electors coUegiately united, who should, and 
would and can conveniently be present. In limited compromise 
they must be elected by secret vote. 

The arbitrators cannot exceed the power granted them. This 
power may be revoked by the majority of the chapter re adhuc 
integra. When the arbitrators elect by scrutiny, their faculty 
may be revoked as often as the scrutiny is repeated, provided the 
faculty was not bestowed as a favor or honor, for in this case it 
is presumed to have been an irrevocable gift.^ Tacit revocation 
is not sufficient, but if the chapter should elect re adhuc integra 
the election would prevail. 

An arbitrator cannot elect himself, if he wishes to be a can- 
didate he must renounce his office.^ If the mandate permits one 
of the arbitrators to be elected, then half the number of votes 
together with his consent will ensure his election.^ In election 
by secret scrutiny, not according to the chapter "Quia propter," 
no one can nominate himself in the scrutiny, but after the votes 
have been announced he may add his own to that already given 
to him, by recalling it from another, provided that his vote did 
not constitute a majority for the other.* Where the form "Quia 
propter" obtains, the consent of a candidate is never permitted 
to increase the number of votes cast for him. If the mandate for- 
bids the election of an arbitrator, such an election would be null ; 
if it contains no clause on this point he may be elected, provided 
the mandate does not call for an unanimous vote. 

Should the arbitrators, even in good faith, elect an unworthy 
candidate, the power of electing returns to the chapter, if the 
lawfully prescribed time for the election has not already expired.^ 
The same is true when the candidate refuses his consent. But if 
the aforesaid time expires and they have elected either an un- 
worthy candidate or no candidate, the election devolves upon the 
superior. 

When the arbitrators elect an unworthy candidate, they and 
not the electors are punished with suspension for three full years 
from all benefices possessed in the church in which the election 
took place. This punishment applies only in the elections of bish- 
ops and their superiors and not when an arbitrator is a bishop. 



' lb., n. 30. 

-Sylvius, lb., II, q. 16, n. 19. 
^cap. In jure 33, de elect. 
* Sylvester, electio 2, n. 2. 
' lb., n. 26. 



82 CANONICAL ELECTIONS 

When an arbitrator is likewise a confirming prelate he ma>^ 
by one and the same act elect and confirm a candidate.^ 

Inspiration, by which a person may be elected to an ecclesi- 
astical office, is twofold. The one is called true inspiration by 
which a person is chosen by God through revelation properly so. 
called, as in the case of Saint Matthias. The other is quasi or 
common inspiration, and is supposed to exist when, with no spe- 
cial preceding discussion on a certain person, the electors as- 
sembled in the electoral chamber unanimously and at the same 
time, with no contradiction or hesitation, immediately proclaim 
a person elected. For such unanimous consent is presumed tO' 
have come from the Holy Ghost — the Author of unity and con- 
cord. The customary general preceding discussion is not con- 
trary to election by quasi-inspiration.^ 

If an elector is absent by reason of his having been con- 
temned there can be no election by quasi-inspiration, even if after 
the election he should give his consent, for such consent is pre- 
sumed to have been prompted by the influence of the others and 
not by the Holy Ghost. Neither can there be election by quasi- 
inspiration if one should recall. his vote before the publication 
of the scrutiny, because the consent would be no longer unani- 
mous.^ A capitular may be elected by quasi-inspiration, if he 
consents to the election thus made, and this even if he had voted 
for another, because the vote of the elect is not computed, and 
hence does not destroy the required unanimity.* 

Confirmation is not required when it is evident that the elec- 
tion was inspired by God, as in the case of Saints Ambrose and 
Nicholas. It pertains to the superior to decide this point, and 
the elect cannot assume office without his knowledge and per- 
mission. But the practice of today, as we stated on an earlier 
page, is that the Church will not ratify this method of election,, 
knowing well that if the electors were prompted by the Holy 
Ghost, they will not hesitate to confirm their choice by secret 
vote, — the Holy Ghost still moving and inspiring. 

^Passerini, lb., c. 22, n. 52. 

"^ Sylvester, n. 28. 

^Hostiensis, de elect. "Qualiter facienda.'* 

*Tabien., v. electio 3. 



/ 



CHAPTER VII 
Postulation 

In ancient law there was but very little difference between 
the election and postulation of ecclesiastical prelates, for these 
words were used promiscuously.^ Today they differ greatly, for 
they imply essentially distinct modes of providing for widowed 
churches. By election a candidate acquires a certain right, and 
his confirmation is an act of justice ; by postulation he acquires 
no right, and his confirmation is a matter of favor. Election 
once concluded cannot be recalled, postulation, on the contrary, 
is always subject to recall until it has been presented to the supe- 
rior. A candidate elect is worthy and eligible, a postulate is 
worthy but not eligible because he has an impediment. If some 
of the vocals elect, and others postulate a candidate, in order that 
the postulation prevail a majority of two-thirds is necessarily 
required. Hence postulation is defined as a petition of the chap- 
ter presented to a competent ecclesiastical superior that he pro- 
mote to a vacant ecclesiastical office a person who is debarred 
from election, not on account of a personal defect, but be reason 
of some canonical impediment, which does not render him abso- 
lutely ineligible.- Since, therefore, these two modes of ecclesi- 
astical provision agree in this, that both pertain to the chapter, 
yet differ essentially in the aforesaid points, it now remains — 
having exposed the method of election — to speak -briefly of the 
other method which is postulation. 

Postulation is either solemn or simple. The former is that 
defined in the preceding paragraph, and admitted by the superior 
has the force of a confirmed election. The postulate, therefore, 
after confirmation acquires the same right as though he had been 
elected and confirmed. The latter is merely a request made to 
a superior to obtain his consent for the promotion of a candidate 
subject to his jurisdiction, e. g., a religious. 

Solemn postulation — differently from simple — ought to be 
made by the electors coUegiately assembled, observing the can- 
onical forms and statutes, and within the lawfully prescribed 
time for election. It is safer, though not necessary, to observe 



^ cap. Litteras dist. 63. 
*D. Antoninus, 111., ti 



tit. 19, c. 3. 



84 CANONICAL ELECTIONS 

the form of scrutiny, except in religious orders, where it must 
be secret ballot. An absolute majority of votes constitutes a 
valid postulation.^ Though it rarely or never occurs without a 
previous election, still it does not depend upon election. By 
special privilege — though contrary to common law — one candi- 
date can be elected and another postulated at the same time. 

The general rule in regard to active voice is that they who 
are qualified to elect, can also postulate, for postulation is acces- 
sory to election and necessarily connected with it. The postula- 
tion must be presented to the candidate within the prescribed 
time-limit, and the latter must give or refuse his consent within 
one month, otherwise he is presumed to have dissented. He can 
only give conditional consent, and although he can withhold it 
from the chapter, he cannot do so against the w^ishes of the Su- 
preme Pontiff. 

In regard to passive voice the general principle is that who- 
ever is qualified for election cannot be postulated. All those are 
eligible for postulation who have an impediment from which the 
Holy See can and will dispense. If the impediment be doubtful, 
one can be elected and postulated, and this done the candidate 
then chooses the method by which he wishes to be promoted to 
the vacant office. Among those unqualified for postulation are 
infants, insane, and women, the offspring of an incestuous union, 
those less than twenty-seven years of age (if it be a question of 
episcopal postulation) and bishops who entered the religious 
state on account of having committed some crime. The Holy 
See usually grants dispensations from all other canonical impedi- 
ments, hence those so unqualified may be postulated. Those 
qualified for simple postulation are cardinals, priests and dea- 
cons, regulars, prelates inferior to bishops and subject to them. 
Those who knowingly postulate an unworthy candidate lose, ipso 
facto, the right of postulating and electing for that election. 

Postulation should be made to the superior in whose power 
it is to dispense from the impediment. A superior is bound to 
admit postulation made by the majority of vocals, if necessity of 
the church and the common good require it, and should he refuse, 
a higher authority may compel him to do so.- Before its admis- 
sion the postulate cannot administer the office for which he was 
postulated, and should he do so the postulation is thereby ipso 
jure null and void. 



*Hostiensis, de post. n. 10. 
*Passerini, lb. c. 24, n. 48. 



CANONICAL ELECTIONS 85 

The same elector cannot at the same time elect and postulate 
different persons.^ If one candidate is elected by one-third of 
the electors, and another postulated by two-thirds, the postula- 
tion prevails, and the election must be cassed ; if the postulate 
receives but one less than two-thirds, the election must be con- 
firmed.^ But if the candidate postulated by two-thirds majority 
be unworthy, then both the postulation and election are void, 
except when the majority of those two-thirds knowingly postu- 
lated said candidate, in this case the election must be confirmed. 
Passerini says the discipline of the chapter "Scriptum" is partic- 
ular legislation, and that whenever a person is elected by the 
majority of vocals, the election should be confirmed, but if the 
one postulated receive the majority the superior may, if he sees 
fit, reject the postulation, unless necessity or the common good 
require him to admit it. 

Besides this postulation ex jure, there is also postulation 
ex privilegio, which is that conceded to the Order of Friars 
Preachers by Alexander IV, March 16, 1257, and by virtue of 
which three concessions are given over and above those granted 
by common law: 1° the vocals may elect one and postulate an- 
other at one and the same time ; 2^ they may postulate several 
persons; 3° they may postulate an eligible candidate. The supe- 
rior may admit any one of those postulated. But this postulation 
holds only where there is also an election, for the decree expressly 
states that it is to be admitted, if for any reason the election is 
not confirmed. This privilege does not abolish that which com- 
mon law concedes, namely, that if the vocals do not wish to elect 
they may have recourse to postulation, for a privilege does not 
take away what the common law denies.^ But in case they do 
not wish to elect, they must observe the laws of the sacred canons 
concerning postulation — if they resort to postulation. 

This privilege comprehends only the elections of conventual 
priors and provincials. The postulation must be by secret ballot, 
and on the same ballot the vocal first writes the name of the per- 
son he wishes to elect by the words: I elect N. (Eligo N.), and 
then writes the name of the postulate after the words : I postu- 
late N. (Postulo N.). Then there should be observed all those 
acts prescribed to be observed in the scrutiny of election. In the 
decree of election the scrutineer should write : Ego N. eligo N. 
et postulo N. A majority of votes suffices for postulation, ex- 

^De post, in VI. 

* cap. Scriptum 40, de elect. 

^Passerini, lb. n. 65. 



86 CANONICAL ELECTIONS 

cept when the postulate is a member of the chapter, when a gain 
of two or one and a half votes is required (Bologna, 1564) if he be 
present or not legitimately absent. 

As said above, postulation can be admitted only when the 
election for some reason is not confirmed. The election is there- 
fore to be examined first, for postulation is never admitted by 
virtue of an inequality of suffrage alone, but election should 
always be preferred unless there be a good reason to the con- 
trary. If it happen that the election is not confirmed, the supe- 
rior is not bound to admit postulation, for the privilege grants 
the faculty but does not impose the necessity of admitting postu- 
lation. And since postulation is based on favour and not on jus- 
tice, the person postulated acquires no right to the prelacy, 
though the practise of the order is that the superior usually 
admits one of the postulates when he cannot reasonably confirm 
the election. 

If an election is null from defect of form, postulation is like- 
wise invalid, for the form of both is one and the same. Postula- 
tion presupposes an election canonical in appearance, but not 
necessarily an absolutely valid election. Custom — which is the 
best interpreter of laws — has always understood and still under- 
stands this privilege to be such, that where no one is canonically 
and lawfully elected, postulations ex privilegio are null and void.^ 

* Passerini, lb. n. 74. 



CHAPTER VIII 
Defects in Election 

The essence of election not only requires lawful qualification 
of active and passive voice and observance of canonical form, but 
also that it be absolutely free ; in other words, the freedom of 
the electors must not be impaired by unjust laws, fraud, threats, 
or excessive fear. In order, therefore, to give a complete notion 
of canonical election, we must show how these vices are opposed 
to it and render it either void or voidable. 

I. In regard to the persons eligible, election cannot be re- 
stricted to one specified candidate by any law, statute, or precept, 
for such an ordination is unjust and the electors are not held to 
obey it, and should they elect another worthy candidate, he 
must be confirmed. The nature of election requires a free choice 
of one in preference to another.^ The common opinion of canon- 
ists is that the electors should have a choice of at least three, but 
this — though reasonable — is not absolutely essential. Many de- 
crees of the Sacred Congregations state that elections cannot be 
restricted to less than four or five. All admit, however, that if 
a restriction is made with the unanimous consent of the electors, 
it is not contrary to liberty. So also if there should be but two 
candidates fully qualified, the electoral choice may be restricted 
to these two, for such objective restrictions come from divine 
law, which prohibits the election of an unworthy candidate. 
Some canonists even say that an election could be restricted to 
one for the same reason.^ This has happened in the Order of 
Friars Preachers, where at one time there was but one brother 
qualified for the provincialate of Calabria, the general notified 
the electors that if they did not elect this brother, he would ap- 
point an outsider. But such restrictions give rise to many diffi- 
culties, and should be made with the greatest prudence ; and if 
another than the one designated should be elected, he must be 
confirmed, unless his unfitness be clearly proved.^ 

Restricted elections are not ipso jure null, for the electors 
can disregard the restriction and elect another. Even if through 

' S. Th. la 2ae, qu. 13, art. 12. 
'Donatus, tract. I, q. 10, n. 13. 
^ Passerini, lb., c. 2, n. 17. 



b6 CANONICAL ELECTIONS 

fear the vocals unwillingly elected a specified candidate, the elec- 
tion is valid — since fear does not destroy liberty — and can be 
annulled only at the instance of the electors. If they voted freely, 
the election is neither void nor voidable. Neither can elections 
be restricted to a certain class in such a way that the vocals could 
not elect one of another if they so wished. General chapters with 
the consent of the subjects or by apostolic authority can estab- 
lish alternatives, in virtue of which a candidate must be chosen 
from one nation for this election, and from another for the next. 
Elections contrary to these alternatives are not ipso jure null — 
unless expressly so ordained — but voidable at the petition of the 
vocals.^ The Roman Pontiff can restrict an election to one and 
under pain of nullity, for the right of election belongs to the 
Holy See. 

In the Order of Friars Preachers provincials in case of neces- 
sity can restrict the electors to not less than three candidates, 
but not to the exclusion of others ; for should they elect another, 
the provincial must confirm him^ if he has the necessary qualifi- 
cations." Pius V decreed that if a general or provincial of the 
Order of Friars Minor restrict the electors to three or four can- 
didates, he shall be deprived of office.^ Generals in reforming 
provinces or congregations may, by special privilege, restrict the 
vocals to three or four candidates under pain of cassation, but 
this privilege is not conceded to the office, and must be obtained 
by each newly elected general if need arises. 

II. In respect to the electors freedom of election is im- 
paired when they are deprived of voice, their number increased 
or diminished. 

No superior, the pope excepted, can deprive a lawful capitu- 
lar of active voice, unless he proceeds according to the prescrip- 
tions of common law. The pope for a just cause can licitly and 
validly recall this concession, and even without a just cause, his 
revocation would be valid. In the Order of Friars Preachers no 
vocal can be lawfully deprived of voice within a month previous 
to any election, except for reasons given in the chapter on grave 
faults. A provincial's office expiring during the vacancy of the 
generalship, or after the beginning of a year fixed for a general 
chapter for which he is a definitor, continues until the general 
is elected, or the chapter has been held.* 



* lb., n. 60. 
' Bologna, 1564. 
'Miranda II, q. 23, a. 21. 
*Castell., c. 5, n. 781. 



CANONICAL ELECTIONS 89 

Superiors cannot increase the number of electors by sending 
an outsider to an election, unless they have power to give ap- 
probation for active voice to persons not possessing it. In the 
Order of Friars Preachers this may be done in two cases, as we 
have stated above when treating of the conditions for active 
voice/ When, therefore, the number of electors is fixed by com- 
mon law, no one inferior to the Pope may increase or lessen it ; 
when it is not determined, it may be increased or lessened by 
those who have this right from common law. We have already 
seen that superiors of the Order of Friars Preachers cannot 
validly assign brothers with active voice to a convent from two 
months before the prior's term of office expires until the election 
and confirmation of a new prior.^ Moreover, if a brother has 
been assigned to a convent two months previous to an election, 
this assignation must be made known to the convent. Superiors 
are forbidden to make simulated or fictitious assignations. There 
are some exceptions to this discipline, but they too have already 
been sufficiently treated on an earlier page.^ 

Just as there can be no assignations to, so also there can be 
no removals from a convent of the Order of Friars Preachers 
within two months previous to an election, unless necessity of 
providing for an office in another convent or grave scandal re- 
quires a removal. And if a vocal is removed for any reason 
within this time he retains his voice in the convent a quo, even 
though no longer assigned there. If after the election and con- 
firmation of a prior, brothers are assigned to or removed from a 
convent, and some time later the election and confirmation are 
cassed, the election of a new prior does not pertain to those who 
here and now have been assigned to the convent for two months, 
but to those who were assigned thereto for two months previous 
to the former vacancy, for a priorship is considered vacant from 
the expiration of one prior's term of office until the lawful and 
valid election and confirmation of another.* 

If a superior remove a vocal within the. prohibited time, the 
election is licit and valid, if he was not excluded or contemned 
by the electoral body. Neither is the election voidable at the in- 
stance of the said vocal, for he suffered no injury from the elect- 
ors, but from the superior.^ But if he were excluded and con- 

' vide p. 42, lit. b. 
^Passerini, lb. n. 50. 
^ vide p. 42. 

* Castell., lb. c. 5, n. 7X 
Tasserini, lb. n. 106. 



90 CANONICAL ELECTIONS 

temnecl by both chapter and superior, the election is voidable at 
his indictment. In case the number was unjustly increased, if it 
is evident the election was not decided by this circumstance, it 
is neither void nor voidable, for "utile per inutile non vitiatur." 
In doubt, the vocals should be admitted under protest.^ 

III. Freedom of election is also impeded by violence and 
fear. The former absolutely destroys free will and renders an 
act wholly involuntary. The latter implies a dread of evil, but 
does not absolutely force the will, it causes a person to will some- 
thing, which he would not have willed, if he did not apprehend 
evil. Vocals are affected by the former if they are violently 
ejected from the capitular assembly, or compelled to cast a ballot 
against their will ; by the latter when through fear of grave in- 
jury they are moved to vote for a particular candidate — being 
forced to choose a lesser in order to avoid a greater evil. 

Violence and fear may be just or unjust : just when a vocal 
is compelled by legitimate authority to observe the prescriptions 
of the sacred canons; unjust when the legitimate liberty of the 
vocal is destroyed. Violence properly so-called renders an elec- 
tion null and void, since it destroys freedom of choice. If fear is 
justly and reasonably incited by superiors, elections thus affected 
are neither void nor voidable — even when the electors are re- 
stricted to one candidate, for the elector is not thereby absolutely 
necessitated to one, since fear does not destroy liberty and his 
act remains voluntary.- The common and most probable opinion 
is that elections brought about through fear unjustly excited are 
not ipso jure void but voidable, unless there be a special law to 
the contrary.^ Grave fear unjustly directed to extort the votes 
of the electors is sufficient to annul an election. 

All who unjustly persecute ecclesiastical vocals, for not hav- 
ing elected the candidate they proposed, incur the penalty of ex- 
communication.* This censure is also extended to postulation 
and in a wide sense to presentation.^ 

IV. Many pontifical constitutions have been promulgated 
against those who procure the votes of electors by evil suborna- 
tions or bribes. Clement VIII decreed that all who directly or in- 
directly procured votes in this way either for themselves or for 
others should be deprived of voice perpetually. Accomplices and 

' Lezana, lb. n. 107. 

- St. Th. la Ilae, qu. 6, art. 6, ad 2m. 

^Passerini, lb. c. 4, n. 10. 

*Lateran Council. 

^Passerini, lb. n. 44. 



CANONICAL ELECTIONS 91 

those knowing but not revealing such actions also incur the 
penalty.^ 

Consultations of vocals rightly ordered according to justice 
and charity is not only not prohibited but prescribed. If an 
elector is in doubt as to which is the fittest candidate he may 
extol the virtues and the merits of the one, and in so far as 
justice will permit modestly recount the defects of the others. 
These discussions are evil and are to be reprobated if they take 
place before the office is vacant. In the Order of Friars Preach- 
ers one public discussion is allowed on the day previous to the 
election, but the vocals may engage in private discussions at will. 

Provincials of the same order who endeavor to induce di- 
rectly or indirectly electors to vote for unworthy candidates are 
punished with privation of active and passive voice and perpetual 
inhability to all dignities and offices.- Passerini, contrary to 
many other authors, holds that these public discussions on the 
merits of candidates are not necessary, except when ordered by 
the Supreme Pontiff, and that general chapters can prescribe un- 
der pain of excommunication latae sententiae that they be 
omitted.^ 

V. It is forbidden to bestow offices on regulars at the re- 
quest of persons — secular or ecclesiastical — outside an order, or 
to procure office through their influence, for the interference of 
outsiders tends to bring discord and dissension into a community. 
Parents do not come under the name of outsiders.* The censures 
incurred by superiors sinning in this respect vary according to 
different institutes. It is certain that all sin mortally. Superiors 
of the Friars Minor, Hermits of St. x\ugustine, Carmelites, and 
of other orders incur excommunication latae sententiae.^ The 
constitutions and ordinations of the Order of Friars Preachers 
mention no penalty, but the chapter of Rome 1589 and Milan 1622 
warned superiors that such actions would bring upon them the 
guilt of mortal sin. 

Subjects are forbidden to procure offices through the influ- 
ence of outsiders, to accept those thus procured, or to bestow 
gifts for the purpose of obtaining them. Unprofessed novices 
and nuns are not comprehended in the pontifical decrees. In 
some orders members are permitted to procure offices for those 

' lb. c. 5, n. 31. 

* Toulouse, 1628. 
^Passerini, lb. 65-73. 

* Portell., n. 18. 
= Ib. n. 1. 



92 CANONICAL ELECTIONS 

in the same order; in the Order of Friars Preachers it is for- 
bidden to procure them either for oneself or for others.^ To 
determine accurately the discipline regarding subjects, the dif- 
ferent papal constitutions published for different orders must be 
considered. Subjects of the Order of Friars Preachers incur ex- 
communication latae sententiae, perpetual privation of suffrages 
and all offices, and many grevious penalties.^ 

VI. One of the worst vices that can creep into canonical 
elections is simony. Simony is a deliberate intention of buying 
or selling for a temporal price such things as are spiritual or 
annexed unto spirituals.^ Speaking of simoniacal elections we 
include all modes of ecclesiastical provision. Furthermore, if 
the first act of an election is simoniacal, so also are all subsequent 
acts. Purchase and sale are strictly required to constitute 
simony, for any exchange of spiritual for temporal things is 
simoniacal, e. g. elect me bishop, and I shall confer a benefice 
upon you. The general rule is that to impose any burden on a 
spiritual office not annexed to it is simony. It is not simony to 
give a temporal as a price of a spiritual thing, provided it was 
not the determining motive.* 

The first censure pronounced against simoniacs, — even oc- 
cult — is excommunication latae sententiae simply reserved to the 
Apostolic See, and affects: 1° those persons and their accom- 
plices who are guilty of simony in ecclesiastical benefices, pro- 
vided that the terms of the agreement have been partly or com- 
pletely fulfilled by both parties ; 2° all persons of whatsoever 
dignity who procure a benefice for a certain person with the 
agreement that the latter will later either resign the benefice in 
favour of him through whom it was procured, or divide the rev- 
enues with him; 3° those who buy or sell admission into a re- 
ligious order.^ 

A simoniac is also suspended, but since he is already excom- 
municated, this censure is of little moment. He may likewise 
accidently incur irregularity from the fact that he is branded 
with infamy. He does not incur it per se, since irregularity is 
incurred only in cases expressly declared by law, and nowhere 
can we find such a declaration. 



^Rome, 1589. 

"Fontana, v. favores. 

' St. Th. 2a 2ae qu. 100, art. 1. 

* Suarez, n. 13. 

^ Const. "Apostolicae Sedis." 



CANONICAL ELECTIONS 93 

Infamy of law ferendae sententiae is another penalty of 
simony, and this once incurred brings with it irregularity. All 
simoniacal promotions even among regulars are affected by this 
censure. Simoniacs not only incur these grave penalties, but are 
also deprived — ferendae sententiae — of all offices and benefices.^ 

All ecclesiastical provisions tainted with simony are ipso 
jure null and void.- We except papal elections from this state- 
ment : Julius II declared these elections invalid but this enact- 
ment was rescinded by Pius X.^ Both parties are bound to resti- 
tution. The purchaser is also bound in conscience to restore all 
profits actually acquired,* as well as those which but for his fault 
the rightful possessor would have acquired. He may, however, 
retain the expenses attached to the acquisition of the profits — 
except those expended in improving the benefice, and the salary 
due to his ministry. A simoniacal office becomes ipso facto 
vacant, and can be conferred on another without awaiting a sen- 
tence of declaration, for it is sufficient if declaration is made and 
proof furnished even after a new collation ; but the condemned 
may appeal from the sentence, and if he does, he must not in the 
meantime be deprived of his office, though in conscience he sins 
in retaining it. 

Persons who in good faith receive a simoniacal benefice must 
resign it together with the profits, except those consumed while 
in good faith. If, however, an enemy fraudulently gives money 
for the promotion of a person, so that the election will be cassed 
and the candidate punished, or if on hearing that simony was to 
enter into the election, said person expressly objects thereto, he 
lawfully and validly acquires the benefice, and is not held to re- 
noimce it, unless he afterwards consented to the agreement by 
carrying out its stipulations.^ But if such an election favored 
the candidate, and unconscious of it he made no resistance, the 
acquisition is null, and as soon as the beneficiary learns of it, he 
is bound to resign both benefice and profits — even those con- 
sumed, in so far as he had thereby become richer.® But if he 
held the benefice for three years in the same good faith in which 
he had received it, he is in nowise bound to resign it.'^ 

* cap. Presbyter 3. 

- Paul II. "Cum detestabile." 

^ Const. "Vacante Sede," Dec. 25, 1904. 

* St. Th. 2a 2ae qu. 100, art. 6, ad 3m. 
' St. Th. lb. 

Mb. 

' Rota in Calagur. Dec. 14, 1592. 



94 CANONICAL ELECTIONS 

VII. The interference of secular power is also detrimental 
to the natural liberty of ecclesiastical elections. A person con- 
senting to his being elected through abuse of secular power is 
deprived of office and becomes ineligible to all dignities unless he 
obtain a dispensation. Electors celebrating such an election 
render it invalid, are suspended from offices and dignities for 
three years, and deprived of active voice.^ In the latter case 
bishops are excepted, for they do not fall under a general law of 
suspension. This decree refers only to elections to prelacies 
strictly so-called, hence does not include canonries, benefices with 
care of souls, or other offices not dignities.- 

Election by abuse of secular power takes place when a lay 
person or power takes an active part in an election, exercises 
any office therein, or when his consent is required for the election 
of a certain person. If a lay person inspires fear to such an ex- 
tent that he actually forces the electors to elect a candidate of 
his choice, or one of a certain class, the election is null and void ; 
but if through grave fear he compel them to admit him into the 
chapter, to give him some office, or to obtain his consent, the 
election is valid, and the vocals are neither suspended nor de- 
prived of voice.^ 

It is not an abuse of secular power: 1° if a layman takes 
part in an election from privilege, which can be granted by the 
pope ; 2° if from privilege or custom lawfully prescribed a prince 
wishes to be notified of the death of a prelate, that the election 
take place only with his permission, or that his consent be asked 
for elections already held ; 3° if from custom, privilege, or con- 
ditions placed when founding a benefice, the consent of the patron 
is required for elections therein. If the patron is a layman, this 
privilege can be conceded by the pope, if an ecclesiastic, by the 
bishop. A custom cannot, however, be introduced, in virtue of 
which a layman may be permitted to vote in ecclesiastical elec- 
tions.^ A custom cannot be introduced whereby a.n election held 
contrary to the wishes or without the consent of a prince would 
be ipso jure void or voidable. 

The Council of Sardinia ordained that those who elect or 
postulate b}^ the voice of the people, are for that time deprived 
ipso facto of suffrage, and the election — ipso juro null — devolves 



^ cap. Quisquis 43. 
■Barbosa, de jure eccles. I. n. 19. 
^'Bonacius, de censuris, disp. 3, q. 4, p. 5, n. 4, 
*Azorius, 11, 1, 6, c. 4, q. 18. 



CANONICAL ELECTIONS 95 

to those who were not guilty. Paschal II declared all who re- 
ceive a benefice at the hands of a layman excommunicated.* 

VIII. Ecclesiastical elections can also be vitiated by the 
non observance of the form and solemnities required by positive 
and canon law. A slight omission in the form does not vitiate 
the act. But where it is altered to a considerable extent, either 
by acting contrary to or not in accordance with it^ the act is null. 
If, for a just impediment, the form prescribed by positive law is 
omitted, the election is valid, for it is repugnant to reason that 
positive law should bind one to the impossible, since such is con- 
trary to the justice of law.^ 

When an election has been invalidly conducted because of the 
non observance of the form, and the vocals learn of the defect 
before a sentence has been pronounced, they can emend their 
fault and again lawfully elect, because by reason of the first 
defect alone, they were not ipso jure deprived of voice.^ More- 
over, if the majority sin against the form and wish to repair their 
fault, they may do so even against the opposition, protestations 
of nullity and appeal of the minority, for the majority does not 
lose its right nor the minority acquire a new right, before a sen- 
tence has been given to this effect. But once the election has 
been perfected, the vocals cannot proceed to a new election until 
the first shall have been cassed, 

There are many other points regarding the form and solem- 
nities of canonical elections, but since they haye been already 
exposed in detail in the chapter on the act of election, to recount 
them here would be a useless repetition. 

^ cap. Si quis clericus. 

' St. Th. la 2ae., q. 95, art. 2. 

"Sylvester, Electio I. n. 3. 



CHAPTER IX 
Subsequent Acts 

I. A canonical election is ipso jure null and void if, previous 
to the election, the one nominated in the scrutiny consented to his 
election. For to consent to an election at any time before the 
choice has been declared in the name of the chapter by the one 
appointed, is contrary to the prescriptions of the chapter "Quia 
propter." Hence, the electors cannot in the name of the chapter 
pubHcly ask for the consent of the person elected until the elec- 
tion has been closed. A private interrogation prior to the elec- 
tion is at times useful and laudable, but it must not be made in 
the name of the chapt,er. 

If the election meets with no opposition on the part of those 
interested therein, common law prescribes that the presiding 
official notify the person elected that choice has been made of his 
person, and ask his consent. Regarding this notification special 
statutes and customs should be observed. In the Order of Friars 
Preachers no notification is made, even though the one chosen be 
present, nor is his consent required, but the document of election 
is sent to the superior, who — since the will of the subject is that 
of the superior — can compel him even unwilling to accept the prel- 
acy, or forbid him to accept it, if there be a reason for doing so. 

When consent is required, and the elect be present, the noti- 
fication takes place immediately; if he be absent, it must be 
made within eight days, barring legitimate hindrance. If, at the 
expiration of eight days, the notification has not been forwarded, 
the electors are presumed to have omitted it through fraud or 
culpable neglect — unless they prove the contrary, and are pun- 
ished by exclusion from the prosecution of the process, and are 
suspended for three continuous years from all benefices possessed 
in the church in which the election took place. ^ The notification 
may be intrusted to a procurator specially deputed for the office. 

If, before the papers of election have reached the confirming 
prelate, the person elected in the presence of the electors with- 
draws his consent already given, the chapter may thereupon elect 
another, without awaiting the permission of the confirming prel- 

^ MirandaJI, q. 23, a. 10. 



CANONICAL ELECTIONS "* 97 

ate. The elect may afterwards recall his renunciation, with the 
consent of the vocals.^ But if in the same hypothesis the supe- 
rior has already received the papers, the chapter cannot proceed 
to a new election without his permission. Religious also may 
renounce their right, unless forbidden by superiors.^ For 
although a religious has neither velle nor nolle contrary to the 
will of his superior, still the will of the latter is presumed to be 
that of the written law, unless the opposite is evident, as in the 
Order of Friars Preachers.^ 

The person elected must make known his acceptance or 
refusal within one month from the day he received the notifica- 
tion or permission of his superior when such is obligatory, and 
if he fails to do so he loses the right acquired by election, and 
the office becomes vacant.* If he refuses to accept the office, the 
chapter will proceed to another election within a month. The 
refusal of the person elected in no way prohibits his being re- 
elected. In the Order of Friars Preachers, priors-elect must 
make known their acceptance or refusal within three hours from 
the receipt of the letters of confirmation. 

11. If the person elected accept the proffered office, he 
acquires a real though still incomplete right to the said office, 
the jus ad rem to be changed to a jus in re by the confirmation 
of the election, and if qualified for the office in question, it is his 
privilege to exact confirmation from the superior, just as it is 
the latter's duty to give it. Confirmation, then, is the principal 
act of election, and immediately on its having been received there 
arises between the confirmed and the benefice a bond of spiritual 
matrimony. It also brings with it the power of jurisdiction, so 
that if a person should renounce an office after confirmation, the 
office does not become vacant by reason of the predecessor's 
death, but by reason of the renunciation of the person confirmed. 
Although confirmation confers jurisdiction, still the person con- 
firmed does not acquire a right to exercise this jurisdiction until 
he has presented his letters of confirmation to the chapter. 

Should the person elected interfere in the administration of 
his benefice before presenting the letters of confirmation to the 
chapter, all his administrative acts are invalid, and he is deprived 
of the benefice. I'his severe legislation, which concerns epis- 



^ cap. Si electio in VI. 

^Oldr. ad. conf. 128, n. 7. 

' Const. D. II, C II. 

* Rota, decis. 7, 1. 2, conf. 5, cas. 477. 



98 CANONICAL ELECTIONS 

copal sees only, merits a brief notice. Innocent IIP decreed that 
a bishop-elect but not confirmed cannot interfere in diocesan 
affairs, under penalty of losing ipso facto the right acquired by 
election. Exception was made for bishops outside of Italy, pro- 
vided they were unanimously elected, and the utility or necessity 
of the diocese required their interference. In the Second Coun- 
cil of Lyons in 1274, Gregory X^ forbade all elected persons to 
exercise the administration of their benefices by assuming the 
title of administrator, procurator, or the like — the punishment 
being deprivation of dignity. The French church contended that 
this legislation applied only to episcopal election and not to epis- 
copal presentation, but since the reason for the prohibition is 
applicable to both cases, namely, to prevent an unworthy person 
from meddling in diocesan affairs, it includes both, for "ubi 
eadem est ratio, eadem est lex." Somewhat later Boniface VHP 
promulgated a law still in force in regard to taking possession 
of episcopal sees and major benefices, in accordance with which 
bishops elected and confirmed must not enter into the administra- 
tion of their sees before presenting letters of confirmation to 
the chapter of the cathedral church. In the United States, the 
letters must be delivered to the administrator of the diocese. 
On August 27, 1873, Pius IX published a Constitution in which 
he declared: P chapters can neither appoint temporarily vicars 
capitular nor remove them from office until the newly elected 
bishop shall have presented the apostolic letters of his promo- 
tion ; 2° the constitution ' "Avaritiae" extends to candidates 
named and presented by heads of states in virtue of concordats ; 
3° the office of vicar capitular becoming vacant, the chapter 
should elect a successor, not however the bishop-elect; or persons 
nominated by civil power ; 4° those offending against this law are 
punished by excommunication specially reserved to the Holy See, 
and privation of the revenues of their benefices ; 5° the same 
penalties are incurred by the person elected or nominated, as 
well as by all those w^ho give aid, counsel, or countenance. More- 
over, the person elected or nominated loses all acquired right to 
the benefice, the acts exercised are invalid, and if he be a bishop 
he is further punished by suspension from pontifical ceremonies — 
this penalty also reserved to the Holy See. If the administrator 



Const. "Nihil." 
Const. "Avaritiae." 
Decret. "Injunctae." 
"Romanus Pontifex." 



CANONICAL ELECTIONS 99 

is elected bishop, he may continue the administration of affairs 
in virtue of his office already possessed at the time of election. 

Some elections do not require confirmation, hence persons 
thus elected may enter upon the administration of office imme- 
diately on being elected. The Roman Pontiff, for instance, as- 
sumes full administration of the Church as soon as he is elected. 
Nearly all the generals of religious orders by reason of election 
are at the same time confirmed. Although elections of priors 
and provincials need confirmation, nevertheless in many prov- 
inces of the Order of Friars Preachers as soon as they have been 
elected, the provincials administer either as vicars — as in Spain, 
or as provincials — as in the provinces of the Indies.^ But such 
jurisdiction is imperfect and quasi-conditional, and opposition 
can be made to the election itself, and action for cassation taken. 
Finally where there is a legitimately prescribed custom that a 
candidate-elect may administer before he has been confirmed, 
this custom obtains, and said person lawfully and validly exer- 
cises administration.- 

According to common law persons elected not only may, 
but are bound to seek confirmation. Those whose confirmation 
rests with the pope, must set out for Rome within a month to 
obtain the required confirmation f all others must request it 
within three months.* Those presented to a benefice by an eccle- 
siastic must receive confirmation within six months, if presented 
by a layman, within four months.^ Allowances are made in all 
cases for legitimate hindrances. Confirmation may be sought by 
proxy, but not necessarily if the elect labor under an impediment,, 
except when there is a question of papal confirmation.^ If a 
friend, even though not commissioned, obtain the confirmation, 
it is valid if the person elected ratify the petition within three 
months.'' Electors also may petition for the confirmation. In 
case of papal confirmation, two electors should accompany the 
one elected. Although it is the electors who request the con- 
firmation in the Order of Friars Preachers, still the elect himself 



' Peyr., c. 18, n. 2. 

^ Passerini, lb., c. 33, n. 36. 

^ Cap. Cupientes in VI. 

* cap. Quam sit ibidem. 

^ cap. Unico in VI. 

® Passerini, lb. n. 45. 

^Barbosa, cap. Quam sit, n. 11. 



100 CANONICAL ELECTIONS 

may do so, and he is not to be censured for thus acting, since he is 
presumed not to be seeking his own so much as the pubHc good.^ 

Persons-elect neglecting to attend to the matter of con- 
firmation within three months forfeit their right, which returns 
to the chapter. Superiors may restrict this time limit for legiti- 
mate reasons. 

A valid election must necessarily be confirmed by the supe- 
rior, and if he refuse, he should be compelled to do so by higher 
authority, and a limit should be placed within which he must 
confirm, otherwise the higher authority should give the letters of 
confirmation.- No time is prescribed by common law, for the rea- 
son that it should be confirmed as soon as it is known to be valid ; 
where special law sets a limit, it should be brief, and not exceed 
six months. 

The constitutions of the Order of Friars Preachers say that 
provincials and generals may confirm or veto elections according 
as it seems best to them. This does not mean that they can 
per se veto a valid election, for the above concession does not 
bespeak absolute freedom, but the judgment of a prudent man, 
which should be regulated by law. Neither do the constitutions 
wish to derogate from common law, for they could not do so 
without special apostolic authority. Common law states that 
elections in no way canonically defective should be confirmed. 
Nevertheless, a superior may per accidens cass a valid election, 
for per accidens it is not necessary to confirm it. First, because 
of circumstances, for it could happen that the person elected — 
howsoever worthy — might be unacceptable to the authorities of 
the place in which the convent is situated, and because of this 
or other reasons grave scandal would arise. Secondly, if the com- 
mon good of the order should require his services in another office 
incompatible with the prelacy in question. 

Elections should be confirmed by the immediate superior of 
the person elected. Episcopal elections are confirmed by the 
pope. The pope or his legate a latere confirms the elections of 
all those immediately subject to the Holy See. The elections 
of generals that require confirmation are likewise confirmed 
by the pope or his legate a latere. The confirmation of other 
religious prelates pertain to their immediate superiors. In case 
of appeal the judge who pronounces the sentence either confirms 
or vetoes the election. 



* Passerini, lb. n. 47. 
*Castellint, c. 14, n. 15. 



CANONICAL ELECTIONS 101 

Confirmation has no spe<:ified form, but may be given by oral 
or written word, or even an action bespeaking approval, such as 
installation or the like. Letters are necessary for confirmations 
coming from the Holy See, and also when other confirmations 
need to be proved. The confirming prelate must examine care- 
fully both the election itself and the person of the one elected, for 
he must have a moral certitude that everything is conformable 
to law. Hastily given and uninvestigated confirmations may 
be objected to, and if justice demand it, they should be declared 
invalid,^ and the superior loses the right of confirming the next 
prelate in that office, and is suspendid from his benefice. Regular 
superiors are not held to this investigation. In the Order of 
Friars Preachers a provincial must seek the counsel of discreets 
in confirming priors, and should he neglect to do so, he is to be 
punished, but the confirmation is valid.^ 

The superior must confirm the election of a worthy candi- 
date.^ This is true even if the electors had taken oath to elect 
the one best fitted, or even if there was a statute saying that the 
election of a worthy candidate should not prevail if one worthier 
were passed by, for such a statute — contrary to common law — 
is invalid, unless confirmed by the pope. The electors would sin 
mortally in not electing the one best fitted for the office.* 

Confirmation given at the request of the parties concerned, 
or solemnly ex officio is a definitive sentence ; but if given by 
summary judgment, it is an interlocutory sentence. Among 
regulars confirmation for the most part is given in a summary 
judgment, usually from report or testimonial letters. If made 
by interlocutory sentence, the superior may retract it and veto 
the election, but this cannot be done when confirmation is con- 
ferred by definitive sentence.^ A superior residing outside of his 
territory cannot confirm an election solemnly ex officio, but only 
by summary judgment, for confirmation is a judicial act. Where 
the form in the last chapter on election in VI is observed, con- 
firmation is always given by a definitive sentence, and hence 
cannot be pronounced outside of one's territory. 

III. The acts of election and confirmation concluded, there 
next follows that of consecration. The former acts confer epis- 
copal jurisdiction, while the latter brings with it the fullness of 

' lb., c. 14, n. 9. 

^ Passerini, lb., n. 116. 

^ St. Th. 2a 2ae q. 63, art, 2, ad 3m. 

*Passerini, lb., n. 116. 

' lb., 169. 



102 CANONICAL ELECTIONS 

the priestly power — the completion of hierarchical orders. For- 
mer legislation conceded the right of both confirmation and con- 
secration to the provincial metropolitan, who could delegate 
another bishop to perform the latter ceremony. In the present 
discipline no bishop can be lawfully consecrated except by the 
Roman Pontiff, or by his delegate specially commissioned for 
the purpose. The consecrator must therefore first of all assure 
himself of the delegation.^ 

If the consecration takes place outside of Rome, the bishop- 
elect by apostolic indult chooses as consecrator any bishop in 
communion with the Holy See. If it takes place in Rome per- 
mission is given him to choose either one of the cardinal bishops, 
or one of the four major patriarchs residing in Rome. Should 
no one of these accept, he may select any archbishop or bishop, 
but if his own metropolitan is in Rome at the time, the suffragan 
is obliged to request him to perform the ceremony. All con- 
secrations that take place in Rome, must be conducted in a con- 
secrated church or in the papal chapel.^ 

The ceremony is performed by three bishops, of whom one 
is the consecrator, and the other two assistants. A consecration, 
however, would be valid, and at times even licit, if conferred by 
one bishop, as is clear from indults of Gregory the Great, Greg- 
ory III, Innocent X, and Alexander VII. Bishops-eie^t of Latin 
America have an indult, in virtue of which they may ^ conse- 
crate4-byTwo or three priests or canons, if the services of bishops 
cannot be obtained. If assistant bishops cannot be conveniently 
present, their places may be filled by two priests. In missionary 
countries, the consecrator may dispense with the assistance even 
of priests.^ Previous to consecration a bishop-elect must take 
an oath of loyalty and obedience to the Holy See. 

Bishops are bound to receive consecration within three 
months from the time of their confirmation, and should they neg- 
lect this duty without sufficient reason they must restore the 
profits meanwhile acquired; if they delay for another three 
months, they may be deprived of their episcopal sees.* Titular 
bishops lose their right of episcopal dignity if not consecrated 
within six months from their appointment.^ Consecration, unless 
by special indult, must take place on a Sunday or the feast of an 

^ Ben. XIV. Conct. "In postremo." 

^ S. C. Rituum, n. V. 

^Zitelli I. tit. 1. 

* Cone. Trid. sess. 23, c. 2, de reform. 

•'Ben. XIV. Const. "Quum a nobis." 



CANONICAL ELECTIONS 103 

apostle or evangelist (dies natalitia) — not however on a feast 
commemorating events in the life of an apostle.^ The Council 
of Trent prescribed that consecrations outside of Rome should 
take place in the cathedral church or at least within the province 
of the bishop-elect.- 

Corresponding to episcopal consecration, perpetual abbots 
of monastic orders must within one year from the day of their 
election receive solemn benediction from the bishops in whose 
dioceses their monasteries are situated. If they are later trans- 
ferred to another diocese, they are not held to seek this benedic- 
tion a second tim.e.^ Prelates of nearly every other religious 
order, immediately on receiving and signing the letters of con- 
firmation, become ipso facto superiors of the office for which 
they have been elected. 

' S. C. Rituum, July 17, 1706. 

' Ben. XIII. Const. "Commissi nobis." 



APPENDIX 



Manner of Electing a Sovereign Pontiff 

On December 25, 1904, Pius X published a constitution 
"Vacante Sede Apostolica," in which he determined the present 
mode of papal election, and at the same time abolished all pre- 
vious legislation on this point, except that contained in his for- 
mer constitution "Commissum Nobis," and in that of Leo X,III 
"Praedecessores Nostri." 

At the death of a pope the cardinal chamberlain takes 
charge of the papal household, in whose presence he juridically 
verifies the death of the pontiff by striking his forehead three 
times with a silver mallet, calling him by his baptismal name. 
The papal seals and the fisherman's ring are then broken. These 
acts, which are the legal evidence of a pope's death, are drawn 
up by a notary. The corpse is embalmed twenty-four hours after 
death, and on the following day borne to Saint Peter's, v/here 
it is exposed for three days in tjie chapel of the Blessed Sacra- 
ment. At the approach of evening the remains are interred in 
Saint Peter's, where they remain for one year bfore being taken 
to their final resting place. 

Meanwhile all the absent cardinals are notified of the im- 
pending election by the secretary of the Sacred College, and 
those resident in Rome are obliged to wait ten days before they 
proceed with the election, assisting in the meantime at the sol- 
emn obsequies for the deceased pontiff. All the cardinals, unless 
detained by a legitimate impediment, are bound in virtue of holy 
obedience to obey the summons to the conclave. The funeral 
ceremonies completed, the cardinals on the tenth day assemble 
in Saint Peter's, where a Mass of the Holy Ghost is sung by the 
cardinal dean. This service over they immediately — or at eve- 
ning, if they so prefer — go in procession to the conclave, a large 
walled off part of the Vatican palace. The aforesaid constitutions 
of Pius X and Leo XIII are then read, and after a brief sermon 
De Eligendo Summo Pontifice by the dean, the cardinals proceed 
to the cells assigned to them. Absent cardinals on reaching the 
city are admitted to the conclave at any time before the election 



CANONICAL ELECTIONS 105 

is concluded. Each cardinal is accompanied by two attendants, 
either clerics or lay persons ; in case of illness a third way be 
allowed. Other officials and attendants are admitted for the 
service of the cardinals in common, the conclave numbering in 
all about two hundred and fifty persons. The conclave closed, 
all communication with the outside is strictly forbidden, except 
in the presence of those prelates to whom the custody of the 
conclave has been assigned, and then only in an intelligible voice 
and idiom. All are equally sworn to secrecy concerning those 
things which relate to the election under pain of excommunica- 
tion ipso facto incurred. 

All cardinals, even those recently created but not yet vested 
with the insignia of office, enjoy active voice. Those excom- 
municated, suspended, and under interdict also have the right 
to vote. Cardinals not in deacon's orders are not admitted, unless 
by papal indult. Since the time of Urban VI in 1378 none but a 
cardinal has been elected, nevertheless any male christian who 
possesses the use of reason may be elected. The election of an 
infidel, heretic, schismatic, or female would be invalid. 

The form of election is threefold, by compromise, by quasi- 
inspiration, and by secret scrutiny. The first two forms are the 
same as those explained above. The usual form is that of scru- 
tiny or secret ballot, which is resorted to tw-ice a day until an 
election takes place. For this mode of election three cardinals 
are chosen as scrutineers to preside over the voting, three others 
are chosen as revisors to attend to the count of their colleagues, 
and a final three as infirmarians to collect the ballots of the in- 
firm, and of those lawfully detained from the hall of election. 

Each cardinal writes his own and the name of his candidate 
on the ballot (Ego N. Cardinalis N. eligo in Summum Pontificem 
Reverendissimum Dominum meum Dominum Cardinalem N.), 
then seals and folds it so that the name of the candidate only is 
visible. Next it is folded so that no writing can be seen, and 
then, beginning with the dean, each cardinal takes his ballot 
between the thumb and index finger, bears it aloft to the altar 
before which stand the scrutineers, and on which is a large chal- 
ice covered with a paten. He kneels at the foot of the altar for 
a short prayer, then rising repeats in a clear and intelligible voice : 
"I call to witness Christ the Lord, who will judge me, that I elect 
the one whom before God I think otight to be elected." He next 
ascends the altar, places his ballot on the paten, from this drops 
it into the chalice, and returns to his place. If any cardinal pres- 
ent be unable to walk to the altar, the last scrutineer will go 



106 CANONICAL ELECTIONS 

to him and receive his vote. The infirmarians then proceed to 
the cells of the infirm, if there be any, and bring their votes in 
a small sealed box with a narrow opening on the top to the 
scrutineers, who count and deposit them in the chalice. 

The scrutiny concluded, the ballots are shaken up and 
counted one by one into another chalice, and should their num- 
ber not correspond with that of the cardinals present, immediate 
recourse must be had to a new ballot. If the numbers agree, 
the chalice is brought to a table before the altar, the first scru- 
tineer takes the ballots one by one from the chalice, unfolds each 
sufficiently to read the name of the candidate, then passes it to 
the second, who in turn passes it to the third, by whom the name 
is audibly announced to the cardinals. Each vocal has a list of 
the cardinals' names, and usually checks of¥ the votes as they 
are read. 

The ballots are counted, verified by the revisors, and burned 
in the presence of the cardinals. The so-called veto or "Exclu- 
siva" against certain cardinals, occasionally exercised in the 
past by the powers of Austria, France and Spain was abolished 
by the present discipline, which also forbids any cardinal either 
directly or indirectly to introduce such a veto under penalty of 
excommunication reserved in a special way to the future pontiff. 
If no person receives the necessary two-thirds vote, the cardinals 
proceed immediately to another scrutiny, and continue this 
double scrutiny twice a day — in the morning and afternoon — 
until some one is canonically elected. When a candidate receives 
exactly two-thirds of all the votes — as did Benedict XV — the 
ballot of the pope-elect, distinguishable, like all the others, by 
a text of Scripture written on an outside fold, is opened to make 
sure that he did not vote for himself, for to ensure election a 
candidate must receive a two-thirds vote exclusive of his own. 

If a candidate received the two-thirds vote, the cardinal dean 
approaches the newly elected pontiff and asks him whether he 
will accept the election and by what name he wishes to be known. 
If he accepts, all the cardinals arise, and the canopies of all the 
chairs are lowered, except that of the pope, who is conducted 
behind the altar where he is clothed in the papal garments. Re- 
turning to the pontifical chair, the cardinals pay him the first 
homage by kissing his foot and then his hand ; they in turn 
receive the kiss of peace. The cardinal dean places upon his 
finger the fisherman's ring. These ceremonies over, the senior 
cardinal deacon proceeds to the loggia of St. Peter's facing the 
great piazza, and then announces to the assembled multitude the 



CANONICAL ELECTIONS 107 

glad tidings of the election. The populace then enters the great 
basilica, where from the elevated loggia the new pontiff gives 
his first Apostolic Blessing Urbi et Orbi — to the city and the 
world. 

The person thus elected, even though not yet in sacred or- 
ders, acquires full jurisdiction over the universal Church imme- 
diately on consenting, and becomes the Vicar of Christ on earth. 
If not already a bishop, he is consecrated at once by the cardinal 
bishop of Ostia, but this consecration confers power of orders 
only, not of jurisdiction. If the pOntiflf be a bishop, there takes 
place only the solemn blessing. The coronation, a mere cere- 
monial act, is received from the hands of the senior cardinal dea- 
con on the following Sunday or holyday, from which date the 
years of the pontificate are computed. The final act — omitted 
since 1870 — is the formal taking possession of the Lateran 
Basilica, the cathedral church of the Roman Pontiff, to which 
formerly he proceeded in solemn procession. 

II 
Methad of Selecting Bishops in the United States 

On July 25, 1916, the Sacred Consistorial Congregation pre- 
scribed the following legislation for proposing candidates for 
the episcopacy in the United States. At the beginning of the 
Lent of 1917, and thereafter every two years at the same time, 
each bishop shall indicate to his metropolitan the names of one 
or tw^o priests, whom he considers worthy and fit for the epis- 
copal ministry. Priests of another diocese or province may be 
proposed, but it is required sub gravi that those proposed be 
known personally and intimately by the person who proposes 
them. Together with the name of the candidate, his age, birth- 
place, present residence, and principal office shall be indicated. 

The archbishops and bishops, previous to their own selec- 
tion, shall ask of the diocesan consultors and permanent rectors 
the name of some priest whom they deem worthy and fit beyond 
others for the episcopal office. This interrogation shall not be 
made in an assembly, but separately to each, and enjoining on 
each sub gravi the obligation of secrecy, and of destroying all 
correspondence on the matter. This advice must not be dis- 
closed, except perhaps at the meeting of the bishops, of which 
we shall speak later. 



108 CANONICAL ELECTIONS 

The bishops may consult other prudent men, even of the 
regular clergy, concerning the proposal of candidates or the ob- 
taining of information as to their qualifications. They may, but 
are not bound, to follow any advice received, for they shall have 
to render an account to God alone in this matter. And to no 
other person besides the archbishop shall they make known the 
name or names they themselves propose. 

On receiving from his suffragans the names of their candi- 
dates, the archbishop shall add his own, arranging all in alpha- 
betical order, but making no mention of those who proposed 
them. He then dispatches a list of the names to the different 
suffragans, so that they may make inquiries about the qualifica- 
tions of those, whom they do not know personally and with cer- 
tain knowledge. These inquiries are to be made with the utmost 
secrecy, and should there arise a danger of the purpose of the 
investigation becoming public, they are to be dropped. 

After Easter, on a day and at a place to be appointed by the 
archbishop, all the provincial bishops shall assemble with their 
metropolitan to select the names of those, whom they wish to 
propose to the Holy See for the episcopal ministry. They are to 
congregate without formality, as to a friendly gathering, that 
they may not attract attention or excite curiosity, especially of 
newspapers and periodicals. Then, having invoked the divine 
assistance, every one, including the archbishop, shall take an oath 
with hand on the Holy Gospels to observe secrecy, so that the 
bond by which all are bound may be the more sacred. This so- 
lemnity over, the regulations for conducting an election shall be 
read. 

One of the bishops present having been chosen as secretary, 
a moderate discussion takes place, so that the more worthy and 
suitable of those proposed may be selected. The very importance 
of the matter urgently demands that the discussion be held and 
all things done as if Christ Himself were present and directing 
the affair, to the exclusion of every human consideration, but 
with discretion and charity, and with consideration only for the 
glory of God, for the supreme good of the Church, and the salva- 
tion of souls. The piety and religious obligations of all the prel- 
ates require that the proceedings be thus conducted. 

The candidates should be of mature but not too advanced 
age, manifestly prudent in their ministerial work, extraordinarily 
sound in doctrine, devoted to the Holy See, but above all distin- 
guished for their exemplary lives. Their business ability, per- 
sonal status, natural disposition and health must also be consid- 



CANONICAL ELECTIONS 109 

ered. In a word it must be seen whether they possess all the 
qualities required of a good pastor to rule God's people with 
profit and edification. 

When the discussion has been closed by the archbishop, t'^.e 
scrutiny then takes place. Those whom the bishops unanimously 
think should be removed from the list of candidates are not to 
be voted on ; the others — even those most highly approved, shall 
be subjected to scrutiny by secret ballot, beginning with the 
first candidate in alphabetical order. The archbishop and all the 
bishops shall be given for each candidate three balls or pebbles, 
one white, another black, and a third of some other color. The 
iirst shall signify approbation, the second disapprobation, the 
third abstention from voting. Each prelate beginning with the 
archbishop shall deposit in a suitably prepared urn the ball which, 
before God and under grave obligation of conscience, he con- 
siders he should cast for the priest who is being voted on ; the 
other two balls shall be dropped secretly into another urn. The 
scrutiny over, the archbishop assisted by the secretary shall in 
the presence of all count the balls, whatsoever their color, and 
consign the result to writing. Those who have been approved 
with full or an equal number of votes may, on request of a bishop, 
be submitted to a fresh scrtiny to decide which of them is to be 
preferred. Each prelate shall write the name of his choice on a 
ballot, and place it in the urn, and these shall be examined in the 
same manner as were the balls. 

Although the Holy Father, on the vacancy of a see, reserves 
to himself to ask counsel of the bishops or Apostolic Delegate, 
so that he may select the one best fitted to govern the diocese in 
question, still the assembled bishops are free, nay are advised, to 
indicate at least generically which candidates are best suited for 
particular dioceses. 

The secretary shall carefully note down all that was said and 
done at the meeting, and before the bishops separate he shall read 
and submit to their approval what he has written concerning the 
names proposed, the qualifications of the candidates, and the 
votes they have obtained. A copy of the acts, signed by the arch- 
bishop, secretary, and other bishops present, shall be transmitted 
in the safest way possible to the Sacred Congregation by the 
Apostolic Delegate. The acts themselves shall be preserved by 
the archbishop in the most secret archiepiscopal archives, but 
must be destroyed after a year, or even before should there arise 
a danger of the violation of secrecy. 



110 CANONICAL ELECTIONS 

The decree closes with the statement that both on the oc- 
casion of proposing a candidate or on the vacancy of a see — 
especially one of greater importance — the bishops may always 
have recourse to the Sacred Congregation or to the Holy Father 
himself, if they wish to give more precise information. 

If at the beginning of Lent 1917, or in any of the biennial 
periods a bishop should be unable to propose names of candidates 
or to assist at the assembly of bishops, the coadjutor with right 
of succession may propose the names and take part in the sub- 
sequent deliberations, not however the auxiliary. Should the dio- 
cese be vacant no names are to be proposed, since the right to 
propose is granted to the bishop only, and not to the administra- 
tor. If at the same periods the metropolitan should be unable to 
preside at the convention of the bishops, he shall notify the Apo- 
stolic Delegate, who will appoint the senior bishop to attend to 
the functions of the archbishop. In the vacancy of the metro- 
politan see, the senior bishop himself shall obtain the required 
authorization from the Apostolic Delegate. 

J. M. J. D. 



SOURCES AND BIBLIOGRAPHY 

Sources 

Authentic Collections. 

Gratian's Decretal and Private Collections. 

Fourth Lateran Council. 

Council of Trent. 

Pontifical Documents. 

Bibliography 

Andrea, In sex libros Decretalium novella commentaria. 

Antoninus, Summa. 

Azorius, Institutionum moralium partes tres. 

Barbosa, Opera Omnia. 

Bargilliat, Jus Canonicum. 

Baronius, De effectibus electionis etc. 

Benedict XIV, Opera Omnia. 

Boerius, De Jure Electionis. 

Bonacina, De legitima summi electione pontificis. 

Boudinhon, Catholic Encyclopedia. 

Cajetan, Summa. 

Capelli, Disputationes duae de summo pontifice. 

Caramuelis, Hierarchia ecclesiastica. 

Castellini, De electione et confirmatione canonica. 

Castro, De electione. 

Cavagnis, Institutiones juris publici ecclesiastici. 

Craisson, Legislation canonique et civile. 

Cunou, Disputatio de electione. 

Devoti, Institutiones canonicae. 

Donatus, Rerum regularium praxis resolutoria. 

Ferraris, Prompta Bibliotheca. 

Frances, De intrusione tractatus. 

Fontana, Constitutiones Ordinis Praedicatorum. 

Garcia, De beneficiis. 

Hostiensis, Summa. 

Laymann, Jus Canonicum. 

Lezana, Summa quaestionum regularium. 

Mandagotti, Tractatus de electione. 



112 CANONICAL ELECTIONS 

Ojetti, Synopsis rerum moralium. 

Passerini, De electione canonica. 

Raymond, Saint, Summa. 

Reiffenstuel, Jus canonicum universum. 

Rodriguez, Summa. 

Samuellini, Disputationum controversiae de canonica electione. 

Schmalzgrueber, Jus canonicum universum. 

Sebastianelli, Praelectiones juris canonici. 

Smith, Elements of Ecclesiastical Law. 

Sigismund, De electione. 

Silvester, Electio. 

Suarez, Opera theologica. 

Sylvius, Electio. 

Tabienensis, De electione. 

Thomas, Saint, Summa Theologica. 

Thomassin, Vetus et nova ecclesiae disciplina. 

Wernz, Jus Decretalium. 



Universitas Catholica Americae 



Washingtonii, D. C. 



S. Facultas Theologica 



1916-1917 



No. 2 



TITULI 



Deas Lux Mea 



TITULI 



quos ad Doctoratus Gradum in 



JURE CANONICO 



APUD 
UNIVERSITATEM CATHOLIGAM AMERICAE 



Consequcndum Pubiice Propugnabit 



DANIEL MICHAEL GALLIHER 

Sacerdos Ordints Fratrum Praedicatorttm 
Juris Canonici Licentiatus 



HORA K A. M. DIE VI JUNII A. D* MCMXVII 



CANONICAL ELECTIONS 115 

I. De Vi Juridica Corporis Juris. 
II. De Domicilio et Quasi-Domicilio. 

III. De Ruthenis in Statibus Foederatis Americae Sep- 

tentrionalis. 

IV. De Incardinatione et Excardinatione. 
V. De Potestate Ordinis et Jurisdictionis. 

VI. De Privilegio Fori. 
VII. De Coelibatu Clericorum. 
VIII. De Litteris Testimonialibus et Dimissorialibus. 
IX. De Romani Pontificis Electione. 
X. De Cardiiialium Origine, Creatione ac Numero. 
'XI. De Sacra Congregatione Sancti Officii. 
XII. De Tribunali Sacrae Romanae Rotae. 

XIII. De Modo Recurrendi ad Sacras Congregationes. 

XIV. De Romani Pontificis Delegatis. 

XV. De Metropolitis ac de eorum Potestate. 
XVL De Electione Episcoporum in Statibus Foederatis 
Americae Septentrionalis. 
XVII. De Relationibus inter Episcopos et Regulares in 

Statibus Foederatis Americae Septentrionalis. 
XVIII. De Jure Episcopi Ordanandi Religiosos. 
XIX. De Vicario Generali. 
XX. De Vicario Capitulari. 
XXI. De Novitiatus Regimine. 
XXII. De Distinctione Matrimonii inter Fideles. 

XXIII. De Impedimento Mixtae Religionis et Disparitatis 

Cultus. 

XXIV. De Impedimento Voti. 
X^V. De Impedimento Affinitatis. 

XXVI. De Impedimento Impotentiae. 
XXVII. De Impedimento Criminis. 
XXVIII. De Impedimento Vis et Metus. 
XXIX. De Decreto "Ne Temere." 
XXX. De Dispensationibus Matrimonialibus. 
XXjXI. De Convalidatione Matrimonii. 
XXXII. De Sanatione in Radice. 

XXXIII. De Privilegio Paulino. 

XXXIV. De Transactionibus. 
XXXV. De Arbitris. 

XXXVI. De Foro Competenti. 
XXXVII. De Judice. 
XXXVIII. De Promotore Justitiae. 
XXXIX. De Judice Delegato. 



116 CANONICAL ELECTIONS 

XL. De Actore et Reo. 

XLI. De Advocatis. 

XLII. De Actione Rescissoria. 

XLIII. De Actione Reconventionali. 

X^LIV. De Cumulo et Extinctione Actionum. 

XLV. De Introductione et Extinctione Instantiarum. 

XLVI. De Libello. 

XLVII. De Citatione. 

XLVIII. De Litis Contestatione. 

XLIX. De Probationibus. 

L. De Testibus. 

LL De Instrumentis. 

LIL De Praesumptionibus. 

LIIL De Causis Incidentibus. 

LIV. De Sententia. 

LV. De Appellationibus. 

LVL De Re Judicata. 

LVIL De Executione Sententiae. 

LVIIL De Restitutione in Integrum. 

LIX, De Processu Criminali. 

LX. De Processu Matrimoniali. 



Vidit Sacra Facultas : 

Daniel L Kennedy, O. P., S. T. M., p. t. Decanus. 
Franciscus I. Coeln, Ph. D., p. t. a Secretis. 
Vidit Rector Universitatis, 

•I* Thomas L Shahan, S. T. D. 



VITA 

Daniel Michael Galliher, the thirteenth son of Michael and 
Brigid Galliher, was born on August 11, 1883, at Hinsdale, in 
the Berkshire Hills of Massachusetts. His early studies were 
made in the public schools of his native town, and his higher 
classical education was received at Saint Laurent College, Mont- 
real, Canada. He was graduated in 1909, and in September of 
that year entered the Order of Friars Preachers at Somerset, 
Ohio, where he made his religious profession on October 3, 1910. 
Thence he was sent to the Dominican House of Studies, at the 
Catholic University, Washington, D. C, to pursue the regular 
philosophical and theological course prescribed by his Order. 
Here he w^s ordained to the priesthood on June 23, 1915, by the 
Most Reverend John Bonzano, D. D., Delegate Apostolic. While 
at the University, Father Galliher followed courses in Canon Law 
under Doctor Bernardini, Mediaeval History and French under 
Doctors Robinson and Teillard, respectively. 




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